Posted: Tuesday, 3 April 2012 @ 11:50
Since the Licensing Act 2003 came into force in 2005 there have been a number of occasions when certain police forces have closed down licensed premises with immediate effect where they consider that they are operating in breach of the conditions on their Premises Licences. Often the breaches are trivial. Examples have included CCTV systems not fully functioning, CCTV tapes not kept for the required period, a copy of the Premises Licence displayed instead of the original, and so on.
But do the Police have the power to close premises with immediate effect in such circumstances? The short answer is no. Licensing experts have been arguing this for years. The police have simply ignored us, and have been backed by the Home Office. But now they have had to back down with considerable egg on their faces and with potentially huge claims for compensation for loss of profit for their illegal conduct.
To be fair the Home Office did withdraw its flawed guidance last July, but the High Court has on 13 March now given a definitive ruling that the police do not have the power of immediate closure under section 19 of the Criminal Justice & Police Act 2001. In the case brought by the Bank in Wakefield, the West Yorkshire Police and the Home Office have been ordered to pay compensation.
In a consent order it was stated that “the service of a closure notice under section 19 of the Criminal Justice & Police Act 2001 does not require the premises to close or cease selling alcohol immediately; or entitle the police to require it to do so; or entitle the police to arrest a person on the sole ground of non-compliance with the notice”.
So what are the powers that the Police have over closure of premises licensed to sell alcohol?
The Criminal Justice and Police Act of 2001. This allows the Police to serve a closure notice under that Act where premises are being used for the “unlicensed sale of intoxicating liquor for consumption on the..... premises....”.
The breach of a condition on the Premises Licence or Licensing Act 2003 can make any sale of alcohol “unlicensed”. Whilst this was aimed at the sale of alcohol where there was no licence at all, it can be used for minor breaches. The notice has to set out the grounds of the complaint and what steps have to be taken to remedy the situation. It does not, as now confirmed, have the effect of closing the premises immediately. Only the magistrates have the power to close the premises, and the police can only apply to the Magistrates not earlier than 7 days after service of the closure notice, and only then if the complaint has not been remedied. So in this situation a licensee has 7 days to get the situation sorted, and does not have to close immediately.
The Licensing Act 2003 . The police have the power to issue a closure order requiring the premises to close for up to 24 hours if there is or likely to be disorder and the closure of the premises is necessary in the interests of public safety. The order comes into effect when it is served, but the Police must apply to the Magistrates’ Court to consider the closure order, and the Licensing Authority must then carry out a Review of the Premises Licence. But note that these powers are only available where there is a disorder and public safety scenario.
If you are now faced with this situation, or have previously been forced to close immediately, I strongly advise that you seek urgent legal advice.
Nigel Musgrove
Licensing Law Specialist
Tel: 0845 003 5639
For free advice on this topic please call us on 0845 003 5639.
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