An effective enforcement tool or a sledgehammer to crack a nut?

Police photo iStockphoto standard 146x219Paddy Whur looks in detail at s. 53A of the Licensing Act 2003, focusing on the key elements that should be considered prior to this type of review being launched, as well as the other relevant stages of the process.

I have been heavily involved with summary reviews since their inception, and I think I have a balanced view, in that I have looked at them from all sides. I am fortunate in that I have received instructions from both police forces to represent them in summary review hearings and to defend operators, the subject of summary review hearings. In addition I have had the opportunity to train police forces around the country in relation to the use of s. 53A summary/expedited reviews of my own accord and as part of a Home Office training programme.

One thing for sure is that as an enforcement tool they divide opinion between the police and an operator.

In the first year of their introduction (brought into the Licensing Act by the Violent Crime Reduction Act (2006) in October 2010) we did not see a huge take up of the procedure. In the whole of that year, I was only involved in four summary reviews nationally. However, we have seen a significant spike in their use in that currently I am instructed on five summary reviews either acting for police forces or the operator, having completed another two before Christmas.

There is no doubt whatsoever that they are an effective tool when used in the correct circumstances against truly problematic premises. However, it is important not to take a knee jerk reaction to one set of circumstances at a venue and go direct to summary review. We have been involved in cases where the desired end result of the police could have been achieved by getting the operator to make a minor variation application i.e. the shift to polycarbonate glass where there had been one incident of glassing at a venue. In these cases it can be much quicker, less time and cost consuming to go for a voluntary change.

However, where there is a lack of trust with an operator, which has built up by a previous track record of non compliance and then a trigger event which brings about a summary review… invariably it is the correct thing to do to put these premises back before the licensing committee for them to make a determination as to what is appropriate in the circumstances. In these circumstances one can expect the launch of the expedited review.

The Home Office highlight in their guidance document that the Violent Crime Reduction Act 2006 introduced the powers set out in Section 53A to Section 53C of the Licensing Act 2003 to provide "a quick process for attaching interim conditions to a licence and a fast track licence review when the police consider that the premises concerned is associated with serious crime or serious disorder or both".

It is important to remember from a starting point that summary reviews do not apply in respect of premises licences which do not authorise the sale of alcohol. In addition they cannot be used in relation to club premises certificates.

"The powers under Section 53A to 53C are aimed at tackling serious crime and serious disorder, in particular (but not exclusively) the use of guns and knives".

It is interesting to note that the s. 182 guidance document has had the sections in relation to summary reviews removed from the review section. This is the statutory guidance document to which licensing authorities have to have regard.

The information contained previously in this document appears now to have being included in the summary review guidance document and it is highlighted in paragraph 1.2 of this document that it has no statutory basis.

When a Superintendent or above issues a certificate to suggest that he/she believes that the licensed premises are associated with serious crime, serious disorder or both then along with an application for a summary review being lodged at the licensing authority the process will be commenced.

The test for serious crime is determined by s. 81(2) and (3) (a) and (b) of the Regulation of Investigatory Powers Act 2000 which are as follows:

  • Constitutes an offence for which a person who is 21 years of age or over with no previous convictions could reasonably be expected to be sentenced to imprisonment for three years or more; and
  • Involves the use of violence, results in substantial financial gain or has conduct by large number of persons in pursuit of a common purpose.

There is no definitive list of behaviours that constitute "serious disorder" but the phrase should be given its plain, ordinary meaning, as is the case under s. 12 of the Public Order Act 1986.

Once the application for a summary review is launched there is then a considerable amount of work that will need to be undertaken both by the police, solicitors for the premises licence holder and the local authority.

There is the potential for three hearings in a 28 day period:

  • Interim steps
  • Representations against the interim steps.
  • The final review hearing, which must be concluded within 28 days of the launch.

The Home Office guidance document states that in deciding whether to sign a certificate, the senior officer ought to consider the following (as applicable):

  • The track record of the licensed premises concerned and whether the police have previously had cause to give advice about serious criminal or disorderly conduct (or the likelihood of such conduct) attributable to activities taking place on the premises – it is not expected that this power will be used as a first response to a problem.
  • The nature of the likely crime and/or disorder- is the potential incident sufficiently serious to warrant using this power?
  • Should an alternative power be deployed? Is the incident sufficiently serious to warrant the use of the powers in s. 161 – s. 165 of the 2003 Act to close the premises or could the police trigger a standard licence review to address the problem? Alternatively, could expedited reviews be used in conjunction with other powers (for example, modifying licence conditions following the use of a closure power).
  • What added value will the use of the expedited process bring? How would any interim steps that the licensing authority might seek to take actively address the problem?
  • It is, therefore, very important from the outset of the decision making process, to determine whether there is a need to go down the route of launching a summary expedited review.

As well as looking at the previous track record of the operator it will be important for a police force to focus into the circumstances that have led to the trigger event taking place. Are they directly linked to the management of the premises? Is there a proven track record of working with an operator to dealing with any issues at the premises? Is there a possibility that the issues could be dealt with by way of a voluntary change in style of operation/minor variation to the premises licence i.e. to put on additional door supervisors/change to polycarbonate glass/put a metal detector on the entrance to the premises.

Proportionality is an important test in relation to this i.e. is the imposition being sought by a police force at summary review stage proportionate to deal with the issues that have arisen.

Clearly if there is a poor track record with an operator and lots of instances of violence/criminality/disorder then it may well be that this is the only route available.

It is as important for a police force, as a responsible authority under the Act as that of the premises licence holder, to put its representations before the licensing committee and in many circumstances the summary review route will be the correct tool to be used.

Ultimately, it will fall to the licensing authority to determine what is appropriate and proportionate in the circumstances to promote the licensing objectives.

At the interim steps stage can:

  • Modify the conditions on the premises licence.
  • Exclude the sale of alcohol by retail from the scope of the licence.
  • Remove the designated premises supervisor from the licence.
  • Suspend the licence.

By the time the matter comes forward to the final review then an additional power is added namely the revocation of the premises licence.

Clearly, the end result of a summary expedited review can have a significant impact on the premises licence. If there is suspension at the interim steps and a revocation at the final review then it can lead to the loss of the business. Quality operators will of course attempt to work with the police to rectify any problems at the premises and agreement may be achievable before the final review.

It will be very important in all cases to assess all of these issues to determine whether it is appropriate or not to launch the summary review and the both parties will be looking to tailor their preparation accordingly. It is a considerable amount of work for both sides and if it goes to a full hearing at review, a potential huge headache for the committee.

Paddy Whur is a partner at Woods Whur. He can be contacted on 0113 234 3055 or by This email address is being protected from spambots. You need JavaScript enabled to view it.

Colin Manchester’s book Alcohol and Entertainment Licensing Law 3rd Edition is published by Woods Whur. To read reviews of the book and order a copy, click here.