In poor condition

Walker Morris recently won a Home Office contract to conduct a national programme of intensive training relating to tackling alcohol-related crime, disorder and public nuisance. Writing on the key lessons learned so far, Paddy Whur reveals there are major concerns around conditions imposed on premises licences.

We have now had the opportunity to attend the first five of the three-day Home Office Intensive Support visits and we are seeing a recurring theme in relation to some major concerns. The first of these centres around the conditions imposed upon Premises Licences. We have noted some particularly poor licences with:

• outdated converted conditions from Public Entertainment Licences
• completely unenforceable conditions due to their wording
• conditions which contradict each other
• conditions which follow verbatim the handwritten operating schedule of applications
• conditions which are covered in other primary legislation
• conditions which have been replaced by the Fire and Risk Assessments.

It was clear that there was a lack of understanding as to the importance of conditions when the Licensing Act became effective in 2005. This was coupled by the Department for Culture, Media and Sport (DCMS) then advising that everything that was in place on a Justices Licence/Public Entertainment Licence/Supper Hours Certificate/Special Hours Certificate/Children's Certificate should be transposed onto the Premises Licence. Operators, solicitors and licensing authorities were struggling under a massive caseload and were not ready to deal with the importance of some unintended consequences of following the DCMS guidance with regard to conditions.

However, over time we have started to see that this practice has, in some regards, created licences with high numbers of unenforceable conditions. Quite often it is difficult for the operator to understand what his conditions are and what they mean and also very difficult for enforcement officers to properly enforce conditions.

The guidance created under section 182 of the Licensing Act 2003 gives assistance with regard to conditions, in that it states they should be:

• enforceable/precise – para 10.4
• necessary for the promotion of the licensing objectives – para 10.7
• enforceable – para 10.11
• unequivocal/unambiguous – para 10.11
• proportionate – paras 10.13 to 10.14
• not duplicated by other statutory provisions – para 10.15 to 10.18.

This regime was given due consideration in the case of R (on the application of Bristol Council) v the Bristol Magistrates Court [2009] EWHC 625 in 2009 when the High Court endorsed the approach as per above. It is somewhat concerning therefore to see licences which are still having conditions attached to them which do not comply with the High Court's view of the legislation.

This is particularly worrying in that a breach of condition/conditions could lead to a section 19 (Criminal Justices and Police Act 2001) closure order or prosecution under section 136 of the Licensing Act. It is vitally important that these conditions are accurate and comply with the guidance and the Bristol case, to give operators the opportunity to comply with those conditions.

The next area that has caused us concern is the inability for many managers at premises to understand the conditions attached to their licence. On inspection visits, virtually all operators say that they are conversant with the conditions on their licence, but then too many of them are not able to highlight what those conditions are or exhibit compliance with them. Regularly operators are unable to comply with enforceable and prescriptive conditions – such as those requiring CCTV systems to be operable and capable of retaining images for a given amount of time. Regularly we have seen premises with nobody able to operate the system and other glaring breaches of conditions on their licences. Often operators are still unaware of mandatory conditions attached to licences and even duties under the legislation to maintain a full copy of the licence at the premises – complete with the approved plan attached. Such fundamental non-compliance does not give the enforcement officer confidence in an operator's ability to manage premises properly and may weigh against an operator should there eventually be breaches of the licensing objectives at the premises.

We would urge any operator, when given the opportunity to do so by way of a review, variation or minor variation, to look to work with the licensing authority and responsible authorities to see if a Premises Licence can be developed which complies with the guidance on conditions as highlighted above.

There are clearly a huge number of licences which are not fit for the purposes of the premises that they cover and much work needs to be undertaken to rectify this position. We should all be working to get these licences manageable and capable of being complied with. Enforcement should be directed at poor operators who struggle to promote the licensing objectives and/or commit Licensing Act offences at their venues. If we all make a push to tidy up unruly licences then operators will have certainty, bad operators will not be able to wriggle out of enforcement due to uncertainty over the conditions and enforcement officers will take less time to carry out legitimate inspections, thus cutting down on disturbance to legitimate business. Everyone would be a winner if this partnership approach – as envisaged in the primary legislation and supporting guidance documents – were to be followed.

Paddy Whur is a partner in the liquor, betting and gaming team at Walker Morris (www.walkermorris.co.uk). He can be contacted on 0113 283 2629 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..