The implications the new Anti Social Behaviour legislation will have on licensed premises and in light of the new legislation, whether closure orders are an easier route to close licensed premises rather than licensing legislation.
Part 8 of the Licensing Act 2003 allows the police to:
The key parts of the Act is as follows:
Superintendant or above may ask magistrates court to make an order requiring licensed premises/temporary event notice, where there is disorder or anticipated disorder, to be closed for a maximum period of 24 hours. This power is only to be used where the police have specific intelligence which leads them to anticipate severe public order problems likely to be fuelled by alcohol e.g. football fixtures, New Years eve parties.
The police should seek voluntary agreement for closure and the courts should only be involved where there is no alternative. A general closure order for a given area can also be issued.
Courts will need to consider all the evidence and make such an Order where it is necessary in the interest of public safety or to prevent the nuisance caused by noise from the premises. The burden of proof is on the police to satisfy the court.
An order under this section is not necessarily premises specific and its aim is to protect the business and the general public. Advanced notice is given and there is no serious risk to the license. A constable is permitted to use reasonable/necessary force to close any premises under this order.
A criminal offence is committed if a relevant person knowingly kept the premises open during the period of the Order – maximum fine of £1000.
This relates to an individual premises and can be obtained without court involvement for instant closure. This power is used where disorder is taking place, is likely to break out or is imminent – it should not be used where disorder is anticipated.
An order, not exceeding 24 hours, will be sought by a senior officer (inspector or above) if necessary in the interest of public safety or to prevent a public nuisance by noise. Before making a request for a closure order, the senior officer must consider the conduct of operator, license holder, manager, supervisor or a premises user under a temporary event notice.
A closure order must:
An Order under this section comes into force as soon as it is served on the appropriate person. It is premises specific and can have serious consequences for the license. An order for immediate closure can be made and voluntary cooperation can reduce risks to the license.
This order must not be used to penalise license holders but will ultimately have the purpose of protecting the public. As soon as possible the police must apply to the court to consider the closure order. (see below)
It is an offence to allow the premises to be open where an order is in place of 3 months imprisonment and/or maximum £20,000 fine.
A senior officer may extend the closure period for a further 24 hours beginning with the end of the previous closure period if believed it is necessary in the interest of public safety and/or to prevent a noise nuisance. Such an extension must be sought through the courts.
The senior officer must apply to the court as soon as possible after the order comes into force, to allow it to consider the order and any extension of it. Where an application is made the senior officer must notify the licensing authority that a closure order is in force, provide details of the content of the order including any extensions and advise that an application has been made to the court.
The Court must consider whether to order the premises to remain closed or whether to revoke the closure order and any extension of it. The Court must consider whether such an order is necessary in the interest of public safety and/or to ensure that no public nuisance is caused.
Where a closure order has come into force under section 161 and the licensing authority have received notification of the same, the licensing authority must review the license terms to see if they need to be modified, removed or suspended accordingly.
A person on a licensed property/temporary event that sells alcohol to a child on 2 occasions within 3 months commits an offence under s147 Licensing Act 2003 There is a maximum penalty of £10,000 fine – increased to £20,000 when s118 Police Reform and Social Repsonsibility Act 2011 came into force.
A closure notice under this section proposes a prohibition on the sale of alcohol on the premises.
Under Section 19 of the Criminal Justice and Police Act 2001, further extended by Licensing Act 2003, gave the police powers to issue a notice that premises will be closed i.e. for breaching license conditions or illegal behaviour.
The notice of closure can be authorised by an inspector and will highlight the breach of the license and the requisite action to be taken. If action is not taken within 7 days an application for closure can be made to the courts for up to 6 months. This notice will not automatically trigger a review of the license unless requested by the police.
Useful reference links:
http://www.legislation.gov.uk/ukpga/2003/17/part/8
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/77951/Policeclosurepowersguidance.pdf
The Anti-social Behaviour, Crime and Policing Act 2014 consolidates closure powers for all types of premises, not just those licensed to sell alcohol. (Sections 76 to 93) It serves as a single closure power covering a wide range of behaviour.
There will now be two stages:
This will be issued by the police or the local authority.
The test is that the person issuing the notice must be satisfied that the use of particular premises has resulted in or is likely to result in nuisance to the public or disorder near the premises, and that the Closure Notice is necessary to prevent the nuisance or disorder from continuing, recurring, or occurring.
Before issuing the notice, the police or local authority must consult any person or agency they consider appropriate, as well as informing the owner, landlord, licensee and anyone who appears to be residing in the premises.
The closure can be for a period of up to 24 hours, and can be extended for a further 24 hours by the police (rank of superintendent or above) or chief executive of the local authority. An initial Closure Notice for up to 48 hours can be issued compared to only 24 hours under the Licensing Act 2003.
The Closure Notice can be tailored to exclude specific individuals or group of individuals but not those who reside at the premises or who are habitually resident. There is a requirement for prior consultation and notification to the owner of the premises.
Breach of a notice can result in up to a 3 month imprisonment and/or an unlimited fine.
The Closure Notice can be cancelled, but if it remains in force an application for a Closure Order must be made to the magistrates’ court within 48 hours.
A Closure Order can be for a period of up to 3 months. A Closure Order can be extended but not beyond 6 months. As an alternative the court can extend the Closure Notice by a further period whilst the owners/occupiers put forward their case for why an order should not be granted.
It will be made if the court is satisfied there is evidence of disorderly behaviour/criminal activity; serious nuisance and/or likely disorder near a premises and can restrict complete access even to those who live there.
The court must notify the licensing authority of any Closure Order made.
The Order can be extended for up to a maximum of 6 months, if deemed necessary, on further application.
A Closure Order can be discharged by application to the magistrates’ court, and any decision relating to a Closure Order can be appealed by application to the Crown Court within 21 days of the decision appealed against.
There are provisions for enforcement of Closure Orders, and disobeying a Closure Order is a criminal offence. Anyone who has suffered financial loss as a result of a Closure Notice will be able to apply to the magistrates’ court for compensation.
Breach of the Order can result in up to a 6 month imprisonment and/or unlimited fine.
The revised Act now also give powers to local residents to force the police and licensing authorities to review licenses under the Licensing Act 2003 even if there are a low number of complaints – threshold is only 3 complaints.
This will ultimately create more work for the police/licensing authority but will in essence give ‘victim’ of anti social behaviour a recourse to have the matter investigated/resolved.
The outcome of the case review by the relevant authority who has received the complaint must be notified to the applicant.
Useful reference links:
http://www.legislation.gov.uk/ukpga/2014/12/part/4/chapter/3/enacted
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352562/ASB_Guidance_v8_July2014_final__2_.pdf
The changes to the law now provides the police/local authority further recourse to closure powers by initially serving a Notice of Closure for a longer period of time which is now quick, easy and reliable, further supported with a formal Closure Order which can be obtained and endorsed by the Courts.
Courts have to consider applications for closure orders/extensions (within 48 hours) making the process more efficient and streamlined in comparison to the process under the Licensing Act 2003.
Whilst the community trigger element gives the public a voice it may create more work for the police/licensing agencies which will ultimately come at a cost to the public.
For further information contact Belinda Moore, Weightmans LLP, Leicester.