A recent judicial review of
the Police's powers relating to closure notices and powers of arrest has thrown
up some vital information for all licensees that should be invaluable if
threatened with closure or arrest with regard to certain licensing offences.
The background to this case
is that in February 2011, West Yorkshire Police mounted a series of five
enforcement actions against The Bank, Wakefield. The Police served S19 closure notices and then
immediately forced the Claimant through threats of arrest to the Designated
Premises Supervisor to close the bar. The bar was duly closed on each occasion.
The effect of the closure was the loss of profits both on the night of the
closure and on subsequent trading nights too.
The police had, according to
the owners of The Bank, relied on Home Office guidance that was, in effect,
wrong in terms of the law (the Licensing Act 2003 and the Criminal Justice and
Police Act 2001).
The law says that a closure
notice under the Criminal Justice and Police Act 2001 (section 19) merely warns
the licensee that if the matter of breach is not rectified within 7 days the
police may apply to the magistrates’ court for a closure order pursuant to
section 20 of the same act.
The claim also stated that
while a breach of a licence condition is potentially a criminal offence under
section 136 of the Licensing Act 2003, this does not automatically give rise to
a power of arrest.
The Bank pointed out that
arrest is governed by 24(5) of the Police and Criminal Evidence Act 1984, which
provides strict conditions which have to be satisfied before a person may be
arrested without a warrant. These include where the identity of the person
arrested is unknown, where arrest is necessary to prevent a person suffering
injury, or to prevent loss of or damage to property, to prevent an offence
against public decency or unlawful obstruction of the highway, or harm to a
child or a vulnerable person, or to allow prompt investigation of the offence
to prevent disappearance of the person arrested.
Obviously, it will only be
in very exceptional circumstances that such conditions are satisfied in the
case of breach of licence conditions by licensed premises. None of them was satisfied in the case of the
Bank.
The Bank also claimed that
its human right to trade and to rely on its licence had been abused by the
Police actions. The unlawful threats by West Yorkshire Police to arrest the
Designated Premises Supervisor if the premises did not close amounted to an
unlawful interference with that right. As a result of closing the Claimant
suffered loss of profits on the nights of the closure and damage to the
goodwill of its business. Accordingly, the Bank claimed damages pursuant to
section 8 of the Human Rights Act 1998 and/or section 31(4) of the Senior
Courts Act 1981.
West Yorkshire Police
conceded that the Guidance was unlawful, that its actions had been illegal and
that it was liable to pay damages. The Home Office withdrew the on-line version
of the Guidance and wrote to all Chief Constables pointing out the legal errors
in the Guidance. However, The Bank continued to pursue the claim, because a
more public acknowledgment of the true effect of the Criminal Justice and
Police Act 2001 was required.
Mr. Justice Edwards-Stuart
ruled that the Claimant was entitled to have recorded in a court order that the
Guidance was unlawful.
The High Court has now
approved a consent order requiring the Police and the Home Office to pay the
Bank substantial undisclosed damages for loss of profit.
The order also records that
the West Yorkshire Police and the Home Office accept that:
“The service of a Closure Notice pursuant to
section 19 of the Criminal Justice
Police Act 2001 does not:
a. Require the premises to close or cease selling
alcohol immediately; or
b. Entitle the Police to require it to do so; or
c. Entitle the
Police to arrest a person on the sole ground of non-compliance with the Notice.”
The
Police and the Home Office also agreed to pay the Claimants’ costs.
Michael
Kheng (from Kurnia Licensing Consultants) stated:
“This
was a clear case of over-enforcement causing damage to the goodwill of a
business, not to mention the intimidation felt by the licensee confronted by
police officers requiring him to close there and then. My client and I felt it
right to pursue this matter to a judgment, so that the legal position is
clearly established, to protect future licensees from similar conduct."
So my advice, in the
unlikely event that you are confronted by this sort of Police action, is to
refer them to the above acceptance of the law by the Home Office and to seek
the advice of a licensing solicitor as soon as possible.
Grandma used to say that the
police were a publican's best friend and in my experience she was right, but
just like any organisation or person they are fallible. Hopefully the message
has gone out throughout the land that this Judge Dredd style of interaction
with licensees is not just unhelpful in our combined efforts to provide safe
and regulated drinking, but is also just plain wrong. I mean 5 enforcement actions? What did the
Police do to pursue other avenues such as a review of the licence with the
Local Authority, if things had come to such a state that 5 interventions were
deemed appropriate?
With grateful thanks to
Sarah Clover, Barrister, No 5 Chambers, Birmingham and Kurnia Licensing
Consultants for the above explanation and for achieving clarity in this matter
for all of us running licensed premises.
