The Morning Advertiser reported on the decision by the licensee of The White Swan pub in Swansea to close the pub due to the level of crime and disorder in the vicinity of his pub.
Whilst in this case the pub’s closure was a voluntary decision, premises with crime and disorder in their vicinity can face mandatory closures even if they are not responsible for the crime and disorder. When are you responsible for what happens in the vicinity of your pub?
A senior police officer can seek a closure order on grounds of disorder on or ‘in the vicinity’ of and related to the premises. There is no statutory definition or definitive statutory guidance on the meaning of “vicinity” and as such it will ultimately be a matter of fact to be decided by the courts.
This power seems to be at odds with the s.182 guidance that says at paragraph 14.13 “…A statement of policy should also make clear that licensing law is not the primary mechanism for the general control of nuisance and anti-social behaviour by individuals once they are away from the licensed premises and, therefore, beyond the direct control of the individual, club or business holding the licence, certificate or authorisation concerned.”
It is understandable that licensees may find this unfair. Is it reasonable for a licensee to be punished for the actions of others outside their control?
In order to answer this, the intention of the law must be considered. The law and guidance are clear; closure powers do not exist as a punitive measure, but ones that exists to protect the public. Guidance issued to police forces state: “The powers in sections 161 – 170 of the 2003 Act are, first and foremost, designed to protect the public whether a licensee or manager or any other person is at fault or not.”
This might in theory be the case, but in practice closure orders can have significant commercial impact on a licensed premises.
What is key in these cases is communication. The guidance referred to above continues: “The police should, whenever possible, seek the voluntary co-operation of licensees, managers and others in resolving incidents of disorder, potential disorder and noise nuisance rather than move directly to a decision to use a closure order. Police officers should be aware that any decision to deploy the powers available to them to make a closure order under section 161 of the 2003 Act will almost inevitably lead, after an initial hearing before the courts, to a review of the licence by the licensing authority.”
Closure powers are subject to judicial scrutiny and it is in the interest of licensees to seek expert legal advice and representation particularly given the potential significant commercial impact on a licensed premises.
Regulatory defence barrister specialising in alcohol and entertainment licensing law, appeals and defence.
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