House of Lords Select Committee on the Licensing Act 2003: written evidence of Gerald Gouriet QC.
I am a practising barrister who has specialised in licensing for the major part of my professional life. My experience straddles, in equal measure, the Licensing Act 1964 and the Licensing Act 2003. I am a general editor of ‘Paterson’s Licensing Acts’. I advise and conduct cases for the trade, the police, licensing authorities and residents’ associations. In addition to acting for multi-national hotels (eg The London Edition) and large nightclubs (eg Fabric), I have recently appeared pro bono in a number of applications/reviews/appeals for local residents who cannot afford representation, but find themselves pitted against highly experienced and effective licensing lawyers. Because of the breadth of my practice, I think I can legitimately make the immodest claim that I am in a strong position to comment on the central issue in this consultation – has the Licensing Act 2003 satisfactorily achieved the balancing of the broad range of interests engaged by licensing decisions?
I will come such of the specific questions posed in the consultation paper as are most directly related to my experience; but first I will set out in very short form what I believe to be the major issues needing to be addressed, even though there is an obvious overlap with the 14 questions.
By a wide margin, it is the consumption of excess alcohol that spawns most of the public order problems that we are all-too familiar with (anti social behaviour, noise and other nuisance). The focus of regulatory action, however, seems mainly to be on premises and their licensees. The remedies of closure, suspension of licence, conditioning of the licence, etc., are superficially attractive; but the actual trouble-makers are rarely affected and will move to other premises if their chosen haunt is closed or becomes less popular because of reduced hours or more draconian conditions. For the most part, the drunks who create the problems that the general public are most concerned about drift through the licensing process unpunished, not even rebuked, with no meaningful consequences for their actions – consequences that might have dissuaded them from repetition.
The calibre of licensing panels varies from authority to authority, from the admirable to the indifferent and poor. Sometimes the poor quality is because of the inexperience of newly elected councillors; at other times (not by any means infrequent) panels may comprise councillors who, regrettably, no amount of experience or training is likely to improve, or improve sufficiently. There is no pattern to poor decision-making: applications are granted that should not have been, and refused when they should have been granted. No one category (of those whose interests should be balanced) is in my experience more prejudiced by poor-quality licensing than any other category.
The inescapably haphazard quality of licensing committees demands an effective appeals process capable of correcting bad decision-making. Appeals ‘on the merits’ to a tribunal no higher than a magistrates’ court, of cases, the commercial and other implications of which (investment and jobs) may be of the greatest importance, often fall short of this requirement. Planning decisions, by way of contrast, go before an experienced planning inspector; whereas licensing appeals may be heard by a lay bench, or by a district judge, inexperienced in licensing and impatient to clear his/her criminal list. Moreover, and importantly, the appellate limitations brought about by the Hope & Glory case can render the appeals process illusory.
The approach of modern licensing regulation in this Country [the Licensing Act 2003] has been to attempt to predict the outcome of a host of possible permutations of circumstances, and create a rule to govern it. This has been to the detriment of sound decision-making. Instead of a licensing authority striving to ”do the right thing”, members are too often trying to identify the rule that governs the case in point. It is worth reminding ourselves of what we abandoned when we repealed the 1964 Act. Under that legislation, licensing justices could grant/refuse a licence in the exercise of a general discretion, when they thought it was right to do so; and that could result in a lawful refusal “on the ground of remoteness from police supervision and the character and necessities of the neighbourhood.” The attempted regulation, currently, of every predictable eventuality, and the replacement of a general discretion with a template of specific rules and guidance have, in my opinion, dulled the edge of judgment: licensing authorities tend not to ask themselves “what is the right thing do, in all the circumstances?” – but “what are we allowed to do?” Or worse still: “what are we told to do?”
The potential benefit of an EMRO (a focussed solution to a discreet area of anti-social problems) has, in my view, been insufficiently recognised by local authorities. In 2014, acting on behalf of the ALMR, I opposed an EMRO in Blackpool: I think that Blackpool’s refusal to make an Order has reverberated too strongly around the country. The central entertainment area of Blackpool had been thought of as tailor-made for an EMRO; and I have heard it suggested that if an Order was not appropriate there, where else could it be? The costs of consultation and subsequent hearings, together with fears as to appellate costs (which I will touch on later) have made local authorities disinclined to take advantage of this useful tool.
Questions 4 & 6
Planning: a repeated mantra (at licensing hearings) is that planning and licensing are two different regimes, and that, accordingly, planning considerations are irrelevant to decisions under the Licensing Act. That mantra is difficult to overcome, even though there is a wide overlap between planning and licensing – particularly when considering cumulative impact. Licensing Justices (under the 1964 Act) often required planning permission to be in place before they would consider a licensing application: I think that was eminently sensible. I am sometimes instructed in applications for review in which the terminal hour under the planning permission is shown to be significantly earlier than that given by the 2003 Act licence. Licensing authorities tend to say that enforcement action should be taken under the planning regime, rather than adjust the licensing hours to match the planning hours. I think that an integration of the two regimes, under the authority of Guidance or Law, would be of great benefit.
Local communities: the greatest disincentive to local communities becoming involved is the fear of an award of costs on appeal. That fear has made appeals by local communities (or individuals) extremely rare. Although there is nothing in the Licensing Act itself, there is guidance in case-law, and from the Magistrates Association and Justices’ Clerks Society to the effect that such awards should be exceptional; but I am of the strong opinion that costs in licensing appeals should be put on a statutory footing, similar to costs in appeals before our Tribunals, and be awarded only against a party who has behaved unreasonably.
In order to address this question I asked two police licensing officers (with whom I had recently conducted a review) to meet me in chambers and discuss the issues arising. Their responses are as follows –
The public perception is that drunkenness on our town and city streets, and the anti social behaviour (generally) of those drunks, are a major (if not the major) cause for concern. Resources, however, do not permit drunkenness itself to be directly targeted: arrests for ‘drunk and disorderly’ are uncommon; there has been a substantial reduction in police cells and custody suites, which militates against such arrests; transport is (understandably) prioritised for more serious crime and disorder, and therefore unavailable to take drunks off our streets.
Police are instructed that if they are to intervene, “disorderly” has to relate to concerns about public safety. Lesser concerns (such as disorder!) cannot be addressed. Time-consuming bureaucracy (form-filling), in any event, dis-incentivises the police from taking action against the “mere” urinating, vomiting, shouting, yelling, screaming drunk. Resources do not permit plain-clothes observations in licensed premises, in order to detect and deter the serving of alcohol to persons already drunk, or allowing drunk persons to remain in licensed premises. In one area of London there are 1700 licensed premises, including 500 + pubs and late night clubs (with hours extending to as late as 06:00 in the morning): but there are only 2 licensing police officers (out of a panel of 6) on duty on a Friday and Saturday night.
It is my view (and the police I spoke to concurred, although it is right to say the suggestion came from me) that one of the principle adverse consequences of our current licensing regime – the behaviour of drunks on our streets on weekend nights – is only adequately addressed when it escalates to criminal damage and violence. By concentrating our efforts on the premises from which these people pour, we often unfairly attack licensees and businesses that are wholly blameless, leaving so many of the true culprits unpunished, not even reprimanded, free to migrate, wholly unconcerned, to their next licensed base, and start again there.
Other issues raised by the police were: They would like the power to close premises immediately, where they are being used for the unauthorised sale of alcohol. Closure Orders under section 20 Criminal Justice and Police Act 2001 are an inefficient remedy. (Complaint and summons to attend court soak up time.) They are concerned that they are assigned to licensing for a 2-year period only: just as they become experienced, they are moved on.
I should add here that I have a parallel concern in the (often) limited experience of councillors. That they are elected, and in theory represent the views of local people and are accountable to them, are much-praised features of the new regime; but again and again I see counsellors sitting on a licensing panel who have no experience in licensing, nor any understanding of it. It is not possible, nor even permissible, within the ambit of the procedure followed at these hearings, to bring such counsellors up to speed.
The police I spoke to are troubled by the procedure adopted at licensing hearings. They say it is too formal, sometimes inhibiting, and frequently it does not allow all of the facts to be aired. That concern is best dealt with in Consultation Question 9.
Home Office Guidance advises that licence hearings should take the form of ‘a discussion lead by the chair’. I have never attended a single licensing hearing whose procedure was remotely similar to that description. Licensing committees tend to follow the somewhat ritualistic procedures of a local authority meeting – minutes read and approved, nomination for chair, declarations of interest, etc. A rigid adherence to the printed Agenda, for example, strlongly militates against “discussion”. I have found that any attempt to correct a fundamental mistake, because of which a hearing will proceed tangentially off-course, can be silenced until the precise moment in the agenda arrives for that party to be permitted to speak. I have seen 1 ½ to 2 hours of a hearing unnecessarily proceed late into the night, because neither I for the applicant nor the barrister appearing for the police were allowed, despite several attempts on our part, to point out that the 30 conditions under detailed discussion between committee members and their legal officer were agreed and in any event not relevant to the review in hand.
It is said that the procedure at a licensing hearings is less inhibiting than court procedure. I cannot agree. The public I deal with, and even on occasion the police, are at sea when attending licensing hearings; nervous as to when to speak, when not to speak, not understanding what is going on, or what they are to do, or how they can (if indeed they are allowed to at all) dispute gross errors. Even experienced licence-holders can find themselves unable to get their points across, because of uncertainty as to procedure, how long they can speak for, or what documents they are allowed to produce.
The time-limits imposed by a great many licensing authorities are arbitrary and often a barrier to the true facts of a case seeing the light of day. There is a disinclination to adjust any of these pre-determined limits to the particular hearing before the committee. I was recently before a London authority, on behalf of the police, for a review of a licensed night-club. A gang-member had approached the door of the club with a hand gun and fired at random into the doorway, hitting a member of staff. I was originally given 10 minutes to present the case (including the calling of witnesses), which was later extended to a half-hour. Much was said in the course of the other side’s case (the licensee) that needed correction: but cross-examination was not allowed, so the licensee’s case became untested assertion. Only in my closing remarks could I attempt to explain this to the sub-committee. When it was my turn to close, the chair said to me: “You have one minute”. I pulled rank and took longer – because it was necessary to do so: but a younger lawyer might not have got away with it; and in any event I was under pressure, and although I did what I could in five minutes, I was acutely aware (as was my team) that I had rationed the points needing to be made, leaving out some altogether (though each was of equal importance) because I was limited as to time. A committee drumming its fingers on the table and constantly looking up at the clock is not exactly receptive, even to just five minutes of submissions.
Cross-examination of witnesses is rarely, if ever, allowed. This has led to a dawning realisation in some professional witnesses that unsupported assertion (however far-fetched) is likely to go untested. Thus we may have an application for a new bar in a cumulative impact zone: the applicant asserts that he has other such bars (similarly branded) in the UK, and its customers there are mature, (not the 18-25s); he says that the operation is food-led; there will no music; in short, what he proposes is not likely to lead to anti-social behaviour. The police do not have the resources to check the other, similar premises elsewhere in the UK, or the veracity of the applicant’s assertions: they take the position – on the strength of what the applicant says – “we do not object”. Local residents visit this brand elsewhere, and find drink-led bars, disk jockeys, dancing, drunkenness, and limited take-up of food. At the licensing hearing, cross-examination is not allowed – so the applicant’s assertions are not tested. All the committee has are two sides, each saying the opposite of each other. The tendency then is to decide that since the police do not object, the licence will be granted. A vulnerability to costs, should there be a successful appeal of a refusal to grant when the police have not objected is frequently cited to me, informally, as the principal reason for granting. In my opinion this is an intolerable situation, and one that is arsing with greater and greater frequency.
In summary: hearings conducted under the Licensing Act 2003
Whether a case is won or lost, whether I appear for a licensee or for a responsible authority, and especially when I am acting for local communities, I and those around me frequently leave licensing hearings with the sense that whilst they may have produced the right result, or something approaching it, that is perhaps by chance rather than because of the quality of the licensing regime and how it is implemented. Too many, on all sides, tell me they leave hearings with a bad taste in their mouths, and the sense that the result was something of a lottery.
Gerald Gouriet QC
Home Office Response to Report