Licensing reforms "will lead to increased hearings and costs"

The government’s proposed removal of vicinity as a pre-requisite to make an objection in licensing cases is likely to lead to increased hearings and costs for all parties, it has been claimed.

In its submission on the Police Reform and Social Responsibility Bill, John Gaunt & Partners wrote: “Vicinity is an essential ingredient in determining impact of licensed premises on a business or resident. Most Licensing Authorities take a pragmatic and sensible view with regard to vicinity and this generally works in a proportionate way.

“We have had many experiences of representations, which have been accepted by Licensing Authorities as coming from within the vicinity, which upon closer examination, do not bear scrutiny. Further, by removing vicinity there would no doubt be an increase in the number of representations received but of more concern is the possibility of representations from anywhere (and totally unconnected with and unaffected by the subject premises).”

John Gaunt & Partners, which specialises in licensing, added that if statutory guidance was felt to be required on a definition of ‘vicinity’, then legislators could be referred to the test in section 158 of the Gambling Act 2005.

The firm warned that the proposals to reduce the burden of proof on licensing authorities in making their adjudication would also “severely disadvantage the hearing process and in our submission lead to more appeals where the burden of evidence is rightly different and the additional costs which this will bring to all parties involved”.

Its submission reported that operators and licensing professionals meanwhile have real concerns with licensing authorities becoming responsible authorities – and therefore potential applicants/objectors and also judge and jury. “[This] raises serious issues with regard to natural justice,” it said, citing Article 6 of the Human Rights Act which guarantees the right of applicants to a fair trial.

John Gaunt & Partners pointed out that there had been legal issues in Scotland where under the Licensing (Scotland) Act 2005, the Licensing Boards already effectively are in this position.

The firm’s comments on other specific measures included:

• Persistently selling alcohol to children: “Most operators have in place robust systems to avoid sales to underage persons and where such sales occur, it is usually not a case of wilful determination to sell or a lack of educational training, but an error of judgement by the frontline member of staff,” the firm argued, adding that the existing 48 hour period works “well”, is very salutary to the operator and staff affected and gives the opportunity for additional staff training where required. “This period of voluntary closure is a minimum/maximum which should remain, failing which we anticipate that operators will be less willing to accept voluntary closure and will prefer to take their chances before the Magistrates, with consequential increased costs to all. An application for a review in such circumstances always remains an option for the enforcing authority to seek a longer closure period.”
• Early Morning Restriction Orders: As currently drafted these would have the likely effect of a blanket ban on all licensed premises where an EMRO is adopted and have a particularly adverse effect on the hotel and food-led trades, "neither of which significantly contribute to problems of crime and disorder”. The firm recommended the adoption of the ‘principal use’ and ‘patronage’ tests within the Alcohol Disorder Zone Regulations 2008, for an EMRO to apply.
• Late Night Levy: The firm said it was concerned that the levy has to apply across the whole of the Licensing Authorities area and although there is provision for exemptions and reductions, these are entirely in the discretion of the Licensing Authority. “This is far from satisfactory.”

Commenting on the Bill overall, John Gaunt & Partners said although some of the original proposals consulted on had not been carried forward into the Bill, many of those that have represent “the most far reaching reforms of the licensing system, other than the reforms within the 2003 Act itself”.

It questioned how the reforms fitted in with the government’s commitment – expressed in the consultation – to challenging the assumption that the only way to change people’s behaviour is through adding to rules and regulations.

“Whilst we wholly applaud these sentiments, the reality is that many of the provisions within the Bill only add to the rules and regulations that apply or will apply to operators within the licensed trade and none of which appear to be directed at those individuals themselves,” the firm said.

It warned that “the responsible majority (which is an overwhelming majority) are to be disproportionally burdened”, should the Bill be enacted.

John Gaunt & Partners also claimed that “little or no weight” appeared to have been given to changes – and the effect of those changes - to the Licensing Act 2003 since its implementation in 2005 or to other enforcement activity.

“In particular we would note the provisions for summary review introduced by the Violent Crime Reduction Act 2006, the general increased enforcement regime which operates under the 2003 Act, the very recent change to the offence of persistent sale to the under aged to 2 strikes (from 3) in a 3 month period (itself a relatively new offence), and the much increased use of closure notices under section 19 of the Criminal Justice and Police Act 2001.”