Posted: Monday, 18 January 2010 @ 09:57
Over the past few years 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. Just before Christmas there were 2 such cases in the north of the country where CCTV systems were not functioning.
But do the Police have the power to close premises with immediate effect in such circumstances? The short answer is no. I am concerned that the Police are abusing their position if they suggest otherwise. But licensees may feel that they have no option to close in the face of such pressure by the Police.
So what are the powers that the Police have over closure of licensed premises?
We must first look at the Licensing Act 2003, the primary legislation dealing with licensed premises. 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. So the Police have looked to other legislation to justify their involvement where premises are operating under a Premises Licence but perhaps have not complied with all the conditions of that licence.
The Police ploy has been to quote 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....”. This procedure was intended to tackle a situation where no licence existed for the sale of alcohol, not where perhaps due to inadvertence or oversight a condition on the licence was not being met to the letter. However some creative policing has tried to use this in situations not intended by Parliament.
But it is true to say that the use of premises for the sale of alcohol where conditions are not strictly complied with is an unlicensed sale of alcohol. So the Police win here, but what does that mean? 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 the Police suggest, 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.
But that is not the end of the story. The licensee could still face prosecution for breach of a licensing condition, and could find the Premises Licence challenged by a Review application by the Police. So the Police can bring great pressure to bear on a licensee who may well fear further action if they do not comply with a Police request to close immediately and stay closed until the Premises Licence condition has been complied with.
If you are faced with this situation I strongly advise that you seek urgent legal advice.
Nigel Musgrove
Licensing Law Specialist
For free advice on this topic please call us on 0845 003 5639.
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