Review proceedings and police evidence
Recent licensing cases stress the need for the Police to produce robust evidence when going before a committee or court on appeal, writes Jonathan Hyldon.
Whilst appearing in review proceedings brought by the Police – whether expedited or standard – or even when applications to vary premises licences are contested, it is not uncommon to be burdened with multiple lever arch folders presented by the Police. These contain huge volumes of evidence supposedly relating to the premises but which on close scrutiny proves on occasion not entirely to be the case.
This often occurs when a licensed premises is a local landmark and therefore if the emergency services are required the caller will automatically say the incident is at the place which is easiest to identify nearby e.g. the “Royal Oak” rather than “outside the curtilage of 275 Windsor Road in close proximity to the junction of Slough Avenue”.
The current Guidance issued in October 2012 under section 182 of the Licensing Act 2003 indicates that the “licensing authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of the licensing objectives. However, it remains incumbent on the police to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing” (para 9.12). To our mind, this imposes a responsibility on the Police to ensure that the evidence which is presented is fair and balanced.
In December 2010, prior to the amended Guidance, in a case reported on Local Government Lawyer (Birch House Business Centre Ltd v Denbighshire County Council), District Judge Shaw in Prestatyn Magistrates’ Court awarded costs in the sum of £24,000 against Denbighshire County Council in a licensing appeal.
In his decision, the District Judge criticised the presentation of Police evidence of incidents discrediting the premises. On that occasion, and in a manner which is all too familiar throughout England and Wales, the Police presented to three separate Committees a ‘summary’ of incidents. This was in the form of a document and included a ‘summary log’, ‘analysis’ and a ‘hot spot’ map. No doubt it also contained the usual array of bar charts, pie charts and any new chart which could be concocted by the Police to present the evidence.
According to District Judge Shaw, the material presented by the Police to the licensing committee “did not give an accurate reflection of the true situation and was slanted by its omission of relevant details so as to present the Appellants in a worse light”.
It appears that things do not change. In one recent hearing post the amended guidance my client was subject to an allegation of rape connected with their premises where in a crime report the name of the premises “x” and the word “rape” were left with virtually all of the other words blackened out. Fortunately, the Police provided me with the original blackened out version and therefore in the hearing I was able to hold the document up to a light at which time the “Rosetta Stone” revealed its true secrets in that “X” had met “Y” in a bar which was not my client’s. X and Y then went to a property some miles away at which time an alleged rape took place. Incidentally X lived in a flat above my client’s premises which is why they were implicated to the alleged incident!
The impact of this evidence could have had severe operational and financial repercussions to my client’s business.
Now in another recent case the position with Police evidence has again been considered with great scrutiny. On this occasion, the London Borough of Sutton licensing sub-committee heavily criticised Police evidence in a licence review.
On this occasion the sub-committee in conclusion commented “that the way in which the evidence was presented to the Sub-Committee by the Police was unsatisfactory. In addition to our view that a slanted view of the evidence was presented by reason of unsatisfactory editing of the CCTV, to give only a picture which appeared to support the application and omitting footage which showed a truer picture of incidents, the language in the statements and narrative was exaggerated and unnecessarily emotive.
"It is also worthy of comment (adversely), that we were presented with in excess of 1,800 pages of documents by the Police. Substantial numbers of those pages contained no evidence whatsoever and thus, the Sub-Committee in preparation for the review hearing was burdened with an obligation to read volumes of unnecessary documentation. The schedule of incidents and many pages of call-out and crime reports and statements submitted by the Police had not been adequately cross-referenced. Many of the incidents, and a significant proportion of the papers, proved to be irrelevant to the review or their relevance was unclear. This unstructured, unfiltered approach to the presentation of a review case was extremely unhelpful and we would hope that lessons will be learnt by the Police in relation to any future review applications that are presented.”
Sounds familiar…
Not stopping there, the Sub-Committee went on to find that “We would also comment that the Police evidence contained little or no recognition of actions taken by the premises licence holder in response to Police concerns, nor did it assist in understanding why the ongoing interaction was non-existent despite attempts from the premises licence holder to engage. In submission for the Police it was suggested that the licensing officers had sought to put a fair and balanced picture and had been “scrupulously fair” in the way that the schedule had been put forward. Unfortunately, we were not satisfied that that was so.
Clearly, any police evidence put forward should be capable of withstanding close scrutiny (and be made the subject of such scrutiny) and if it cannot, the Police case should be justifiably undermined. At times licensing authorities are too eager to give Police evidence more weight than it deserves just because it has come from the police.
Although these decisions are not binding they do highlight that there is an onus on the Police to produce robust evidence when going before a committee or court on appeal.
Jonathan Hyldon is an associate partner at John Gaunt & Partners in Sheffield. He can be contacted on 0114 2668664.