Propel - The policing and crime bill opinion piece by Michelle Hazlewood

This opinion piece was written for and appeared in this weeks Propel Friday Opinion which you can subscribe to here.

The policing and crime bill was subject to its first reading in the House of Commons on 10 February 2016 and seeks to cure a number of problems and anomalies within the current licensing legislation. Perhaps the most well-known of these is the issue of interim steps (which ought to be welcomed by licensing practitioners and operators alike) and licensing authorities will obtain the ability to review personal licences. However, in the past licensing cures have not always had the intended result and having reviewed the bill we have some concerns.

The bill looks to amend the legislation in relation to interim steps arising from a summary review of a premises licence. The concept of interim steps was introduced so as to allow rapid assessment of the impact of a premises on the licensing objectives where it was associated with serious crime and/or disorder, often the outcome being the suspension of the premises licence pending a full review hearing. Unfortunately, S.53A Licensing Act 2003 did not clearly stipulate whether the interim steps should: 

• remain in place after a review hearing; before the review decision takes effect (21 days)
• until any appeal hearing
• if the interim steps can be amended
• and/or withdrawn by the licensing authority.

This is an issue that has split practitioners, authorities and courts and clarification from the government has so far been elusive.

The impact assessment issued by the Home Office states: “We would also like to ensure that businesses subject to summary reviews are treated fairly and any interim steps that remain in place after a review hearing are proportionate, including when they remain in place for extended periods when an appeal is lodged by either side.” 

Three different options are proposed. The first to do nothing, which we would hope is not adopted as it leaves everyone in the same predicament. The second is for the interim steps to automatically cease after the review hearing. The review decision would then take effect 21 days thereafter once the period for lodging an appeal has expired (as per a standard review application). However, also built into this option is the right for the licensing authority to decide at the review hearing the determination should have immediate effect (removing the 21 day grace period). However, a right to an expedited appeal to the magistrates’ court, which would be open to all parties that had taken part in the review proceedings would also be available. Even on an overview, this is complex!

The third option (and the one noted as preferred by the Home Office) requires the licensing authority to review the interim steps at the hearing and decide which if any, of the steps imposed should remain in place until the 21 day appeal period has expired or any appeal is determined. In this instance, after a review hearing, the police and licence holder would have a right to an expedited appeal to the magistrates’ court in relation to the interim steps. There is an indication the expedited appeal should be heard within 28 days. Having reviewed the flow chart helpfully provided by the Home Office, option three in reality appears as complex as option two. The unintended consequence of the ability to immediately appeal is where there is a suspended licence you would likely have two appeals. The first immediately after the review hearing against the interim steps and then potentially a second appeal within the standard 21 day period against any other elements of the decision, such as removal of the designated premises supervisor. 

This will escalate the costs borne by all parties and questions must be asked as to which appeal decision will take precedence and there must be a danger of magistrates and district judges taking a pragmatic view that both appeals should be listed together and the expedited element thereby being lost. The best result for the operator would have been for interim steps to automatically cease at the review hearing and then for any decision made at that hearing not to take effect for 21 days or after any appeal is determined ie mimicking the standard review procedure. Disappointingly, this was not even an option for consideration and the bill itself as drafted will bring into effect the third option.

The bill also proposes to allow licensing authorities to suspend or revoke a personal licence. Currently, if a personal licence holder commits a relevant offence, the sentencing court can suspend or revoke their personal licence but in reality this rarely occurs. Unlike Scotland, the English and Welsh licensing authorities have no power to commence a review of a personal licence.

Under clause 132A, the bill proposes to provide this power on conviction for any relevant or foreign offence or a requirement to pay an immigration penalty. The process is commenced by the licensing authority giving notice to the licence holder and inviting them to make representations regarding the situation. At this point, we would expect to see a mechanism setting out a process of a review hearing, which might include the allegation of the licensing authority, an opportunity for the licence holder to respond and input from the police with a caveat the evidence should relate to the licensing objective of preventing crime and disorder only. In fact, the bill provides no opportunity for a hearing, which must be contrary to natural justice and potentially human rights’ legislation as the net result could be the removal of someone’s livelihood. Further, there does not appear to be within the clauses, any back reference to the test for securing the personal licence in the first place and very worryingly references are made to the licensing authority taking into account “any other information which the authority considers as relevant”.

One wonders if an unintended consequence of this section is for the reintroduction of the fit and proper person test! The proposed provision lacks the clarity found in the Licensing (Scotland) Act 2005, which provides a clear process for review of a personal licence and also defines the roles of authority that issues the licence and the authority where the licence holder now lives and/or works. Everyone within the hospitality industry is interested in light bureaucracy but not so as to create a disadvantage to the individual who may lose their livelihood.

The policing and crime bill provides an excellent opportunity to cure the matters discussed above and also look at what constitutes a relevant offence, amend the definition of alcohol to include powdered and vaporised alcohol and to remove the requirement for guidance to be laid before Parliament when it is updated. Our hope is that those drafting the legislation take time to secure the clarity desired by the Industry and licensing practitioners and consider the potential consequences, which will flow from the proposed clauses within the bill.

Michelle Hazlewood is a partner at licensing solicitors John Gaunt