Watching brief

The “Pubwatch” case shows how drinking problems in private premises can be tackled. But, warns Tom Cross, there are circumstances where such a banning scheme could be challenged.

Over the years, various legal tools have been available to local authorities to deal with the problem of disorderly conduct resulting from the consumption of alcohol.

These tools first gave power to deal with drinking in public places. In the nineties, for instance, drinking byelaws used to provide the principal means for controlling drinking activity in a specified location. Then, in 2001, the Criminal Justice and Police Act introduced Designated Public Place Orders (DPPOs), giving local authorities the power to designate public areas in which it is an offence to drink alcohol after being required by a police officer not to do so.

On 31 August this year, the government took the decision to implement Drinking Banning Orders (“DBOs”), power to apply for which is given to local authorities. DBOs are civil orders which can be made against an individual if they have engaged in criminal or disorderly conduct while under the influence of alcohol, and the court considers that a DBO is necessary to protect persons and/or their property from further conduct by that person of that kind while under the influence of alcohol. If a DBO is imposed, the court must include such prohibitions as it considers necessary for the purpose of protecting persons or their property from the subject’s alcohol-related disorderly or criminal conduct, on the subject’s entering licensed premises.

Thus, in contrast to DPPOs, the individual may be banned from specified private premises, as well as or instead of public streets or areas. The Home Office has published guidance on DBOs – Guidance on Drinking Banning Orders on Application for Local Authorities, Police Forces, Magistrates and Course Providers within England and Wales (Home Office, August 2009) – which exhorts a proportionate approach to the making of orders. The making of a DBO is subject to full judicial safeguard. An application is made on notice. The individual knows the case against him and can mount a defence.

The value of Pubwatch schemes

But, as an important recent case demonstrates, a DBO is not the only means through which an individual may be banned from a group of private premises. Another is by decision of “Pubwatch” schemes – in which some licensing authorities play a prevalent role – and whose decisions may be wholly outside of the courts’ supervision. R (on the application of Boyle) v Haverhill Pubwatch [2009] EWHC 2441 (Admin) highlights both the potential value of such schemes to licensing authorities and their potential vulnerability if administered in the wrong way.  

In that case, the claimant, Mr Boyle, sought to challenge by way of judicial review the decision of the Haverhill Pubwatch scheme to ban him from all member premises (not limited to public houses) in the town. He alleged, in particular, a breach of natural justice in that he was never told the nature nor the source of the case against him.

He was faced with the argument that the banning decision was not reviewable in the Administrative Court because it did not involve the exercise of a public function; that it was merely the collective exercise by licensees of something that licensees have long had the right to do at common law – namely to decide, free from challenge (albeit subject to anti-discrimination legislation), who to let onto their premises. Mr Boyle’s case relied in particular on the role played by the operation of public authorities, including the relevant licensing authority, in the operation of the scheme, which, he argued, was integral and indispensable to it.   

HHJ Mackie QC, hearing the case, concluded that on the facts of the scheme in question, the banning decision was not reviewable in the courts. He found that the Haverhill scheme could properly be said to have been run by the licensees and supported by public authorities, in particular the police. Nevertheless, and in spite of a request by the pub industry, he declined to give more general guidance about when a Pubwatch banning decision might properly be said to be in exercise of a public function.  

Leaving the scheme open to challenge

It is nevertheless possible to discern from the judgment two broad circumstances in which the role of local authorities in the operation of a Pubwatch banning scheme are likely to make it more vulnerable to successful challenge.

First, if its role exceeds that of a support and advisory role. Although, for example, licensing officers’ attendance at Pubwatch banning meetings may not in itself indicate that the Pubwatch exercises a public function, the story may be different if they contribute to banning discussions or decisions.

Secondly, if a licensing authority were to impose conditions on premises licences requiring membership of the local Pubwatch where such conditions were not being sought voluntarily by licensees (for example in Operating Schedules). In such a circumstance, a person’s ban could be said to be attributable simply to the existence of the condition on the licence (and therefore to the licensing authority), and not to the licensee, who may be perfectly happy for the individual to drink in the pub. This would support an argument that the Pubwatch exercised a public function.  

Until the next case reaches the courts, local authorities may be well advised to read the guidance set out in the National Pubwatch Good Practice Guide, which addresses legal challenges to Pubwatch decisions. Following that guidance is, for the moment, the most reliable way for authorities to gauge what level of officer participation is safe, and what level could lay the scheme’s decisions open to challenge.

Tom Cross is a barrister at Francis Taylor Building specialising in all areas of local government, public, and human rights law.