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Local authorities have been given new statutory powers to impose local restrictions affecting licensed premise and outdoor events.  How does this affect your premises licence?

The Regulations – Brief introduction

Health Protection (Coronavirus, Restrictions) (England) (No.3) Regulations 2020 (‘the Regulations’) that came into force on 18 July 2020. 

The new Regulations empowers local authority to: 

  • restrict access to, or close, individual premises
  • prohibit certain events (or types of event) from taking place
  • restrict access to, or close, public outdoor places (or types of outdoor public places)

 This is called a “Direction”.

 A direction can be issued where 3 conditions are met:

 the direction responds to a serious and imminent threat to public health in the local authority’s area

  1. the direction is necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in the local authority’s area of coronavirus
  2. the prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving that purpose.

There is a requirement to ensure issuing a Direction is evidenced based. The guidance says: “Before making a direction, local authorities will need to gather sufficient evidence to demonstrate that these tests have been met.” 

Licenced premises and events

A Direction can be issued for individual premises and events.  This mean that your licensed premises or outdoor event could be subject to a Direction.  It is worth noting that a Direction can relate to individual premises and events requiring them to close or cease certain activities.

As we mentioned, a Direction must be evidenced based.  So for example, if a local outbreak is linked back to your licensed premises or event, though for example track and trace information left by customers, a Direction could be issued requiring you to close your premise or cease certain activities.

A Direction must be reviewed every seven days.

Right of Appeal

There is a right of appeal attached to the Regulations by those directly impacted by any Direction, including the owner or occupier of premises or event organiser against whom a direction applies. 

The appeal is to the local magistrate would need to be able to satisfy the court on the balance of probabilities that the decision made by the local authority was wrong – in that it did not satisfy the three conditions listed in the introduction section above – and bring forward any supplementary evidence to support the appeal. 

Licensing Defence Barristers are leading licensing barristers who can assist with appeals in relation to local lockdown restrictions and Directions.  Plese speak to one of our expert licensing barristers tody for expert advice and representation. 

Enforcement

A premise or outdoor event must comply with a Direction.  The Direction is enforced by local authority designated officers, police officers and/or PCSOs.

If they “reasonably believe” that a person is in contravention of a prohibition, requirement or restriction as set out in a Direction, they could:

  • issue a prohibition notice to a person who contravenes a direction, for example by failing to close a premise that has had a direction placed upon it to restrict or prohibit access (local authority designated officer)
  • direct the event to stop, direct a person to leave the event, or remove a person from the event (police officer/PCSO)
  • where the police consider that a person is, without reasonable excuse, in a public outdoor place that has been closed or where access has been restricted under a direction, they may direct that person to leave the place immediately and/ or remove the person from the place.

It is an offence for any person aged 18 or over not to comply with the requirements set out in the Regulations and a Direction, liable to a £100 fine. 

Stephen McCaffrey

Regulatory defence barrister specialising in alcohol and entertainment licensing law, appeals and defence.

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