As licensing lawyers, we often hear licensee clients say that once their customers leave their pub or  nightclub, they are not responsible for their patrons’ actions.  If these customers then go on to cause disorder, shouldn’t it  be down to the police to control them?

This argument (often used by licensees) that they are not responsible for what their customers get up to after they have left their premises has been put to rest by two recent cases, one involving a supermarket in  Brighton and the other, a nightclub in Bristol.

Panache, one of the most popular (and dangerous) nightclubs in  Bristol, lost its premises licence this month, following dismissal of its appeal against revocation of its  licence.   The Magistrates heard that the club was the scene of 150 violent incidents in just 287 club nights, which equates to a ratio of one incident every two nights.

Police superintendent Ian Wylie called for the club to lose its licence and be closed. He told councillors: “All Saints Street has the second highest level of violence of any street in the city of Bristol. Violence outside Panache has increased by 25 per cent in the last year and officers are spending a disproportionate amount of time there.”

During the hearing the club argued that the reports of the above incidents were greatly exaggerated. This led to police applying to be joined as parties to the appeal so that they could produce 4000 pages of records, showing a history of violence, both inside and outside the nightclub, underage drinking and drunkenness.  Amongst the serious incidents reported were one of GBH; four allegations of sexual assault, which were not adequately reported to police; class A drugs seized on 16 occasions in three months; door staff violently dealing with customers, including using inappropriate head and neck restraints; police being deliberately obstructed by senior club staff when attempting to interview victims of assaults; All Saints Street in Bristol city centre having to be regularly closed by police on club nights for public safety; underage customers had repeatedly being found inside, despite supposedly stringent door checks and Police repeatedly trying to help improve the club’s management, without success.

Philip Kolvin, the QC who represented Bristol City Council reported that “the club submitted that this level of incidents was normal for a city centre nightclub, that the club had managed the incidents well and that it was not responsible for what happened away from the premises.”

The court roundly rejected this argument.  The magistrates stated that it was their job to take action in the interests of the wider community, rather than those of the individual licence holder.  The club’s management was found to have failed to recognize the problems and therefore deal with them.

The problems at this nightclub are a rather extreme example of licensing breaches, and it is difficult to see how the club thought it could keep its licence. The comprehensive evidence from the police certainly did nothing to dispel the impression that drunk and disorderly patrons of the club contributed significantly to problems of crime and disorder on the streets of Bristol city centre, once they had left the premises.

The second case involves the supermarket giant, Sainsbury’s, who launched an unsuccessful appeal against refusal of a premises licence for off-sales at its new store on North Street, Brighton, in July.

The magistrates in this case, took the same wider  approach in order to determine whether a licence should be granted. The court took in to consideration the issue of street drinking and what happens with the alcohol once it leaves the premises, regardless of the fact that this is something that Sainbury’s and other off-licences cannot control.

During the appeal, although Sainsbury’s offered additional stringent conditions on its premises licence, the court upheld the council’s decision, as the supermarket giant was unable to show that the grant of the licence would not have an adverse impact on the level of crime and disorder in the surrounding area.

It is worth noting that the area in which the Sainsbury’s store is located, on North Street, comes under Brighton’s and Hove’s cumulative impact zone. This allows the licensing committee to consider the impact of other licensed premises in an area that they consider to have already reached saturation point, due to the sheer number of licensed premises and the high degree of drinking related problems.  Problems usually identified in such areas include:

• street drinking;
• proxy purchasing (buying alcohol on behalf of under-18s);
• pre-loading by young people consuming often large amounts of alcohol before going for a night out (and being more likely to be involved in alcohol-related violence);
• dispersal issues;
• binge-drinking;
• public (and sometimes violent) disorder.

It is now becoming incredibly difficult for a licensee to argue that the grant of a new premises licence or the addition of longer hours will not have a negative effect in a cumulative impact area.

When Sainsbury’s licence application was first opposed by Sussex Police, Chief Inspector Simon Nelson commented that “the granting of a new premises licence to these premises would provide a further venue supplying alcohol, within an area so sufficiently heavily populated with licensed premises that, disorder and public nuisance have reached unacceptable levels.”

Another interesting point about this case is the role played by the public health authority. The City Council’s “top doctor,” Dr Tom Scanlon, Brighton & Hove’s Director of Public Health, gave evidence, presumably on the long term and adverse health effects of excessive drinking.  The influence of health and the effect of the nation’s drinking habits on the public  purse and the NHS are likely to come more to the forefront in licensing applications.  Primary care  trusts and local health boards are to become Responsible Authorities, giving them a right to object to  any new premises licence or variation application.

What these two cases do make clear is that a licensee will be held to be responsible for what happens  away from the premises.   In the past, Licensees could not be held responsible for the behaviour of  patrons once they had left their premises.  It seems that this is fast becoming a thing of the past.

LONDON BOROUGH OF CAMDEN LICENSING EMBRACES TECHNOLOGY

Many local authorities already allow pub, restaurant and other licensed business owners to apply online for licences. Now Camden Council have taken this a step further and have stopped sending consultation letters out to residents who live near to premises whichnis the subject of a licensing application.  Is this a good thing or a bad thing?

The London Borough of Camden, which includes parts of St Pancras and the West End, Belsize Park, Bloomsbury, parts of Covent Garden, Fitzrovia, Hampstead, Holborn, Kings Cross, Belsize Park, Primrose Hill, West Hampstead and, of course Camden Town itself, has embraced technology to deal with its licensed premises applications.
 
The licensing consultation process is the 28 day period during which the local authority consults with members of the public regarding any licensing application for such things as the sale of alcohol, outside tables and chairs, nightclubs and late night refreshment venues.
 
Until 28th April 2011, households within 50 metres of any Camden venue subject to a new licensing application would receive a letter from the council informing them of the application and giving them an opportunity to comment.
 
Now, for the first time in the UK, the London Borough of Camden has changed the procedure by ceasing all postal consultations. Instead, Camden residents now have to register with the council for text and email alerts.  A resident can provide their mobile phone number and email address to the council and can sign up to receive text message or email alerts each time an application is received in their area. The council also emails a weekly list containing all new licensing applications to all Camden’s libraries.
 
These days, technology is essential to many of us. As we organise our lives through a computer or smart phone, receiving notifications by email or text seems practical, easy and fast. Camden Council certainly believes its licensing consultation process is an improvement and is now “faster and easier”.  Oddly enough it doesn’t cite cost cutting as a reason for stopping sending out letters, but that may play well have played its part.
 
Residents groups such as the Fitzrovia Neighbourhood Association are not happy about the change. They say that Fitzrovia receives one licensing application a month and that the neighbourhood is under great commercial pressure. Not everyone uses technology, and some residents may not even have a mobile phone or access to a computer or the Internet. This recent procedural change will exclude them from the consultation process. The population ranges from the tech savvy to the technophobe, so expecting all residents to actively look out for licence applications or sign up to computer or mobile phone alerts may not be workable. There is a danger that people may not even realise there is a need to sign up to these alerts. As a result, some applications could slip through the net and be approved without residents being properly consulted.
 
Camden licensees and would-be licensees should not crack open the champagne just yet, thinking that their applications are going to slip by unnoticed, however!  If the Government’s proposed changes to the Police Reform and Social Responsibility Bill are adopted, anyone would be able to object a licensing application, regardless of where they live or work, by simply signing up to the alerts. Inevitably, this would raise the number of complaints even from non-residents, the administrative burden of dealing with the vast amount of responses would increase and licensing applications will be faced with increasing opposition.
 
For the time being, however, interested residents in the London Borough of Camden should ensure that they subscribe for email and text alerts by visiting the council’s website, www.camden.gov.uk/licensingalerts following the online instructions and emailing ppp@camden.gov.uk with their contact details so as to receive a weekly list of all licensing applications in Camden.
 

Music to my Ears – Playing Music in the Workplace 

Confused about what type of licence you  need to play music in your shop, office, factory or other work place, not to mention restaurants and bars?  You’re not alone.  Here, we explain when it is necessary to obtain (and pay for) a licence from the Performing Rights Society (PRS for Music) and Phonographic Performance Limited (PPL).

Many bars, restaurants and retail stores play recorded music as part of the theme of the premises or as an attempt to create a specific atmosphere and ambience for their customers. Some offices and many factories and workshops, allow the use of radios or background music for their staff to listen to while they work.

Research has shown that in shops, background music increases sales, lengthens the amount of time customers spend in a shop and lifts the sprits of staff. The fact that business owners need to pay for the right to play recorded music confuses many, especially when they have already bought and paid for the music. Often business owners either ignore or overlook the need to pay a licence fee for the privilege of either playing music or just having the radio on that staff and customers can listen to. The first time they are aware of it is often a visit and/or a nasty letter from PRS for Music or PPL.

Who are PPL and PRS for Music?

PPL and PRS for Music are two separate organisations that are responsible for licensing ‘music users’ and collecting royalties for copyright music on behalf of their members. PPL represent the interests of performers and record companies and PRS for Music represent the music writers, composers and publishers.

Technically, all copyright music requires the permission of the copyright owner for every piece of music being performed. However, PPL and PRS provide a means of obtaining that permission through their licensing system and they are responsible for distributing the fees received to the artists and copyright owners.

PRS for Music

When a song or piece of music is written, the songwriter owns the copyright and is entitled to decide how and when it should be played. Music is released, allowing you and I to purchase a song, which we can play at home. However, if we play that song to a wider group of people (for example on your business or organisation’s premises) it is classed as a ‘public performance’. If you want to make a ‘public performance’ we must first seek permission from the copyright owner of that song before doing so. If you do not obtain the required licence you may risk infringing copyright. So, in nearly all cases, if you are playing copyright music written, published or arranged by a member of PRS for Music (or one of its affiliated societies) outside the home (or domestic environment), you will need to buy a Music Licence unless one of the exemptions apply (see below).

PRS for Music

PRS is a  membership organisation, existing solely to collect and enforce the collection of licence fees from music users, and distribute these as royalties to it members, being writers and publishers of music from the UK and abroad.

PPL

Whereas the author and music publisher owns the actual copyright in the lyrics and composition and this is administered by PRS for Music, PPL represents record companies and performers. Phonographic Performance Ltd (PPL) licenses rights similar to PRS for Music’s but in relation to the copyright in the performance and sound recording, which are owned by the performers and record company and administered by PPL.

As PRS for Music and PPL operate for different rights owners they have always remained as separate companies (although one day that may change for charities and non profit organisatons only). A pilot scheme was announced in late 2009 to introduce a dual PRS and PPL licence for non profit organisations and charities but this appears tohave been put on a back burner.

Who needs a PPL and PRS ‘Music Licence’?

A music licence is required for any premises where music is played and can be heard by the public. Although private homes are excluded (as long as the playing of music is solely for private purposes), the definition does include music performed within a business premises whether it is for the benefit of customers or staff or a club where music is played for its members.

Normally, the owner or manager of the premises is responsible for obtaining a PRS music licence and PPL licence. The playing of music includes use of radio, CDs, jukeboxes, MP3 players, television, video music, telephone systems or DVDs, as well as live music or recorded music from a music system or console.

What happens if you fail to obtain a music licence?

Failure or refusal to apply for one could lead to action being taken for copyright infringement on behalf of the copyright owner, which may lead to an award of damages (and costs) if judgment is awarded. Both PPL and PRS can claim for unpaid licence fees going back 6 years.  

What Types of Premises are Affected?

• Churches (church halls use for exhibitions, one off events) ·
• Halls · All Government Buildings (concert venues) ·
• Cinemas and Theatres ·
• Educational Establishments (music featured in school plays) ·
• Events and Exhibitions (museums, galleries) ·
• Health and Beauty venues (background music and TV) ·
• Holiday and Holiday Parks (holiday centres, discos, quizzes) ·
• Leisure Sport and Fitness locations (dance classes, aerobics) ·
• Offices and Factories (including telephone music on hold, waiting rooms, reception areas) ·
• Bars, Pubs and Nightclubs (dancehalls, nightclubs, discos)
• Restaurants and Cafés (one off events, jukeboxes, radio or background music) ·
• Shops & Stores (background music, listening posts/touch screen kiosks) · Social and Members Clubs (Bingos and other games) ·
• Public Transport (boats, coaches, ships, etc)

Exceptions:

Believe it or not, there are a few places, which, subject to conditions, do escape the obligation of PPL and PRS Licensing. PPL or PRS will not licence the use of sound recordings in NHS hospital wards, religious services or ceremonies, domestic use in care homes and in medical treatments taking place in NHS hospitals. Most non-profit organisations and Charities also escape having to apply for a PPL licence, until 1 January 2012, that is, when this exemption will be scrapped. The law was introduced on 1 January 2011, but charity shops and some other institutions will be exempt from the fees for the first year. A statement from the Intellectual Property Office said a charge of £40 a year would apply to 60 per cent of the buildings where voluntary groups met and that most charity shops would pay only £54 per year.

What About Working from Home?

PRS for Music does not usually charge a licence fee where:

• You have your home office in a private residence. That is, an individual working on their own in their home office with others who are permanently resident at that address. However, if you have colleagues who work with you (who live elsewhere) or customers/clients coming to see you (and music is played at these times), then this is not exempt and a licence fee is payable.
• You are a lone worker – workplaces with only one worker, where music is not made available to any visitors/customers at the premises.
• Personal Portable Devices – For example where your staff listen to music or the radio through personal headphones on an MP3 player. Whatever is being listened to should only be audible to the individual through a headset attached to their device and not to any other individual in the workplace.

How much does PPL/PRS Licence cost?

The size of the premises the licence is to take effect over, the number of persons who will be listening, the number of days in the year and the extent to which the recorded music will be used are the main factors which will determine how much your PRS and/or PPL will cost you. It would be unfair to charge a primary school or a small cafe owner, the same amount as the hosts of a major open-air festival.

PPL Refunds

Another bit of good news for business owners is that last year, the Copyright Tribunal published its decision that PPL should replace tariffs charged to public houses, bars, cafes and restaurants, shops and stores, factories and offices back to 2005 rates. In 2005 there was a massive hike in fees, by 400 per cent in the case of some large restaurants. This decision made on appeal has already allowed millions of pounds to be claimed back by licensees as the decision is retrospective (this means that licence fee payers can claim back the difference on fees paid since 2005 and the  amended, lower fee. To avoid PPL being deluged with claims however, you can only apply for a refund if you are owed more than £50.00. Nearly 100,000 premises have been affected. You ought to have been sent a letter by PPL if you are one of those premises due for a refund and also, information on how to claim a refund can be found on PPL’s website.

And Finally… How to Not to Pay PRS and PPL Fees

If you want to listen to BBC or commercial radio (playing PRS and PPL affiliated artists’ music) or play music at a venue/in the workplace, where members of the public, staff or work colleagues can also hear it, there is no way to avoid being subject to these licence fees. Depending upon how musical you are however, you might want to compose, record and play your own original compositions – as the owner of the compositions; no licence fee would apply in this case. Alternatively, in an office or factory (and where not incompatible with concentration or productivity), you could simply authorise individual employees and staff to use headphones with their own portable devices. Also there are music artists that are not affiliated to PPL or PRS. You will still have to pay a licence fee to some other licensing organisation but it’s normally much cheaper. There is even a specially formed royalty free music radio station out there, which was created to enable smaller business owners play background music for significantly cheaper annual fees.

As you can see this area of music licensing is very complex and you should not rely on any of the above as specific legal advice. If you have a specifc query or encounter a particular problem with PPL or PRS licensing, please contact Maria Guida at Silverman Sherliker LLP in our Property and Licensing Team, for further advice.

Temporary Event Notice (TEN)

 You don’t need reminding but Christmas is fast approaching.  Now is a good time to check your Premises Licence and to make sure that it covers both:

 o       The hours you wish to open and

o       The licensable activities that you want to run over the Christmas and New Year period.

 Temporary Event Notices can be used to:

 o       add required licensable activities or

o       to extend the hours that can be provided, or

o       for licensable activities on unlicensed premises.

 You are required to give AT LEAST TEN CLEAR WORKING DAYS NOTICE for all Temporary Event Notices.

Section 193 of the Licensing Act defines “working day” as any day other than a Saturday, a Sunday, Christmas Day, Good Friday, or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales. “Ten working days” notice means ten working days exclusive of the day on which the event is to start, and exclusive of the day on which the notice is given.

Remember: -

A Licensable Activity is..

▪     The sale or supply of alcohol.

▪     Regulated entertainment (i.e. music, singing or dancing)

▪     Supply of late night refreshment (hot food or drink between 23:00 and 05:00)

 An individual who is not the holder of a Personal Licence under the Licensing Act 2003 is permitted 5 TENs in a calendar year.

 Personal Licence holders are permitted 50 TENs a year.

 All premises are limited to 12 TENs in a calendar year.

 A TEN can last up to 96 hours but in total the 12 TENs cannot exceed 15 days in a calendar year.

 A TEN can only be used when the number of persons at the event (including performers) does not exceed 499 persons at any one time.

 It is an offence to carry out a Licensable Activity without an appropriate licence, which carries a penalty of a fine not exceeding £20,000.

A Temporary Event Notice can be used not only to extend your terminal hour but to add activities not currently on your licence (e.g. regulated entertainment).

There must be a minimum of 24 hours between Temporary Event Notices.

WHO CAN OBJECT?

Only the police can intervene to prevent an event covered by a TEN taking place or agree a modification of the arrangements for such an event and then only on crime prevention grounds. However powers are given in the Act to the police to close premises in certain cases of disorder or noise nuisance and these powers extend to premises where there is a TEN in effect.

If you wish us to make any Temporary Event Notice applications on your behalf we offer competitve fixed fees, but first:

BEFORE YOU DO…. CHECK YOU HAVE LEFT ENOUGH TIME TO APPLY FOR A TEN: 

TEN TIME TABLE:

NB: If you already hold a premises licence, you are automatically authorised to carry on your party all night on New Year’s Eve, until your normal opening hours on New Year’s Day (unless this is specifically excluded).

If you wish us to make any Temporary Event Notice applications on your behalf for the Christmas and New Year party season, please contact Maria Guida by email meg@silvermansherliker.co.uk or telephone on 0207 7492720.

With the half term school holiday nearly at an end now, many of you will be returning from having hopped on a plane to enjoy some sun.  Did  you know that any airside venue at an international airport, selling an alcoholic drink to a person, who is already drunk, cannot be prosecuted (even for this most obvious breach of the licensing laws)?

This is because such venues enjoy immunity from the Licensing Act. Sussex Police recently carried out a “test purchasing” spree at Gatwick Airport and uncovered some sales to underage drinkers. Sadly for them, due to the fact that any bar, restaurant or pub selling alcohol on the airside of International Airports in England and Wales do not need a premises licence, they were unable to prosecute. Now Sussex Police are lobbying for change.

It is not just the airside of international airports that are exempt for the rigours of licensing laws. So are parts of designated Ports and hoverports such as Ramsgate, Dover, Pegwell Bay and Folkestone. This means that anyone selling alcohol at any of these places cannot be prosecuted for offences such as underage sales or allowing disorderly conduct.

Nearly a quarter of the 3,529 incidents of passenger disruption have been attributed to people who arrived at the aircraft drunk, according to the latest figures provided by the Civil Aviation Authority (despite the existence of 2 statutes – the Airport Offences Act and the Air Navigation Order – which are designed to prevent this from happening).

On the one hand, we have the Home Office saying that airside pubs are exempt from licensing controls because it is assumed that drinkers will not linger on the premises long enough to cause any problems.

We also have a JD Wetherspoon contribution on behalf of the licensed trade, defending how it operates its business at Gatwick, insisting that it imposes the same controls and good management that apply to all of its other licensed premises.

However, Sussex police intend to lobby Parliament to tighten up the laws on the sale of alcohol at Gatwick Airport (and there is no reason to think that this would not be applied to other airports, ports and hoverports too). The police say: “We need to stress that this is about Sussex Police helping to protect people at Gatwick Airport. It is important to note that we don’t work simply to get prosecutions but to make sure that we and the management of Gatwick are aware of the issues so we can work together to combat them. It is also important to note that the issue is not just about sales of alcohol to children which can be taken abroad for consumption in an uncontrolled environment. In the absence of a Premises Licence, there are other offences which cannot be enforced, for example, sale of alcohol to a person who is drunk, which has implications for other airport and airline users.”

It is being reported that the airport-owner Global Infrastructure Partnership at Gatwick has worked with the police licensing department to amend lease agreements to incorporate some elements of the Licensing Act, but it is unclear whether they mean new leases or existing leases (as a landlord would not have the right to vary any tenant’s existing lease, without the tenant’s agreement).

Maybe Sussex Police have a point. On 28th September 2010 a drunken builder mistook a plane for a bus. He boarded a plane in the Ukrainian city of Simferopol for the flight to Yekaterinburg and he continued to drink during the flight. After the aircraft reached cruising altitude of 10,000 meters, the man repeatedly tried to open the cabin door, saying he wanted to get out of the bus. Male flight attendants finally restrained him. After landing in Yekaterinburg, the man threw a one-litre bottle of alcohol that he had bought at an airport duty-free shop in Simferopol at one of the male flight attendants. The 44-year-old flight attendant was hospitalized with a concussion and a fractured arm!

Every local authority has a licensing policy which sets out the manner in which licensing applications for the sale and supply of alcohol, the provision of regulated entertainment and the provision of late night refreshment are considered. Whilst this policy must be reviewed every three years, each local authority is also required to keep its policy under review within this period and make such revisions, as it considers appropriate.

The current policies will be revised to reflect changing circumstances and any relevant concerns and comments received. The new policies will continue to focus upon promoting the four statutory Licensing Objectives:

• prevention of crime and disorder;
• public safety;
• protection of children from harm; and
• prevention of public nuisance.

Local Authorities are all currently considering changes to their licensing policy.

For example, the City of London is currently inviting interested parties to comment on its licensing proposals for its new policy and the deadline for this consultation is 30th September 2010.  If you are in the industry you ought to check with your local authority as to whether they are having a consultation on their licensing policy – if so, it is a chance to have your say.

In Tower Hamlets there is talk of making Brick Lane a Special Policy Area but the only vague reference to this in the local authority’s Licensing Policy proposal is a statement that they will not make any area a special policy area without consulting local businesses, responsible authorities and local residents.

As part of their proposed changes to their own Licensing Policy, Hackney Council are considering extending their Special Policy Area in Shoreditch. Hackney states that its Special Policy Area “creates a presumption that we will refuse any licence applications made in this area (where objections have been made and the applicant has been unable to demonstrate that they will not add to the negative impact being experienced on the licensing objectives as a result of the concentrations of licensed premises in the area).”

Hackney also proposes to make part of Dalston and part of Stoke Newington a Special Policy Area. Hackney want the Special Policy for Shoreditch made stricter. Applicants will now need to show that there are “exceptional circumstances” as to why their business will not add to the negative impact already being experienced in the area, for example, by not adding to the levels of crime and disorder and/or public nuisance. Exceptional circumstances need to be genuinely exceptional, and so, for example, would not refer to the quality and track record of the management, the good character of the applicant or the extent of any variation sought.

http://www.hackney.gov.uk/Assets/Documents/have_your_say_on_the_proposed_licensing_policy.pdf

Whilst the major changes may seem a long way off (see Licensing: Changes Ahead), the local changes are really just around the corner, and they could be just as major.  Anyone can comment on the above proposals by clicking the above link. You might wonder whether these measures are really needed and whether the proposals are just strangling local businesses in trendy Hoxton? This is your chance to have your say (and feel free to comment below).

Following on from my last blog, All Change Again: Rebalancing The Licensing Act you might be concerned about when the Home Office is bringing in the changes to the Licensing Act? Don’t be (not just yet, anyway).

The Home Office recently confirmed that any proposed changes to the Licensing Act would not be brought into force until 2012. Just to recap, the proposals include:

• Overhauling the Licensing Act to give local authorities and the police much stronger powers to remove licences from, or refuse to grant licences to premises that are causing problems
• Allowing councils and the police to permanently shut down any shop or bar that is repeatedly selling alcohol to children · Doubling the maximum fine for those caught selling alcohol to minors to £20,000 ·
• Allowing local councils to charge more for late-night licences, which will help pay for additional policing
• Banning the sale of alcohol below cost price However, there is no confirmed timescale for implementation of the proposed changes to the Licensing Act 2003.

There was a recent consultation on the proposed changes and the consultation closed on 8th September 2010. The implementation date will be subject to Parliamentary passage of the Police Reform and Social Responsibility Bill and the decisions of Ministers. This relates to all of the proposed changes.

The Home Office has reiterated that it intends for the majority of the proposals in the Home Office consultation will be introduced via the Police Reform and Social Responsibility Bill, due to be introduced into Parliament early in the first session. In addition, implementation dates will be subject to Parliamentary passage of the Bill and the date for Royal Assent has yet to be confirmed.

Whilst some of the proposed changes will be within the primary legislation, others will require secondary regulations and changes to the statutory guidance.

The position in relation to local authority policy reviews under the Licensing Act 2003 remains unchanged: authorities should not attempt to pre-empt any changes to the current legislation, and policies should be based only on the law as it currently stands.

Proposals to remove the three yearly requirements for reviewing licensing policy statements are not likely to be implemented in time to change the current requirement to review licensing policies in January 2011.  

For more about changes ahead in local authorities licensing polices see Going Local: Changes to Local Licensing Policies.

Theresa May, the Home Secretary has published a consultation paper today entitled, “Rebalancing the Licensing Act.”  The consultation paper starts positvely, acknowledging licensed premises working with the police to reduce alcohol related harm and mentioning the acheivements of Business Improvement Districts and Best Bar None, but it then goes on to make suggestions for improving the licensing system, which will make most licensees’ toes curl.

 The Licensing Act 2003 was consulted upon and took around five years to come into force. For this latest consultation, the response deadline is 8th September 2010 and the intention appears to be to legislate as soon as possible using the Police Reform & Social Responsibility Bill, which will be produced later this year.

The Home Office’s stance is that licensing decisions needed to be “rebalanced in favour of communities”.

 Briefly, the changes being proposed are:

• Give licensing authorities the power to refuse licence applications or call for a licence review without requiring relevant representations from a responsible authority.
• Remove the need for licensing authorities to demonstrate their decisions on licences ‘are necessary’ for (rather than of benefit to) the promotion of the licensing objectives.
• Reduce the evidential burden of proof required by licensing authorities in making decisions on licence applications and licence reviews.
• Increase the weight licensing authorities will have to give to relevant representations and objection notices from the police. 
• Simplify Cumulative Impact Policies to allow licensing authorities to have more control over outlet density. 
• Increase the opportunities for local residents or their representative groups to be involved in licensing decisions, without regard to their immediate proximity to premises.
• Enable more involvement of local health bodies in licensing decisions by designating health bodies as a responsible authority and seeking views on making health a licensing objective.
• Amend the process of appeal to avoid the costly practice of rehearing licensing decisions.
• Enable licensing authorities to have flexibility in restricting or extending opening hours to reflect community concerns or preferences. 
• Repeal the unpopular power to establish Alcohol Disorder Zones and allow licensing authorities to use a simple adjustment to the existing fee system to pay for any additional policing needed during late-night opening. 
• Substantial overhaul of the system of Temporary Event Notices to give the police more time to object, enable all responsible authorities to object, increase the notification period and reduce the number that can be applied for by personal licence holders. 
• Introduce tougher sentences for persistent underage sales.
• Trigger automatic licence reviews following persistent underage sales.
• Ban the sale of alcohol below cost price.
•  Enable local authorities to increase licensing fees so that they are based on full cost recovery.
•  Enable licensing authorities to revoke licences due to non-payment of fees.
• Consult on the impact of the Mandatory Licensing Conditions Order and whether the current conditions should be removed.

This news is a further blow to the licensed trade, which is already struggling through the recession.  The trade will have just six weeks to convince Government that no further changes are required to the Licensing Act.

 The Home Office is to hold a series of five regional workshop events around the country to consult on its proposed changes to the Licensing Act — but the consultation period has been truncated to six weeks.

The regional events will take place in London, Birmingham, Cardiff, Blackpool and Newcastle in a similar fashion to discussions, which took place last year over the mandatory code.

A certain tabloid newspaper has hailed the consultation as the “end of 24-hour drinking.”  Association of Licensed Multiple Retailers (ALMR) chief executive Nick Bish said: “I am appalled..They are trying to take ownership of a consultation document and assuming it will all be passed through. Of course, we all know that the majority of places that have 24-hour licences are the supermarkets.”

Despite the short consultation period, ALMR is optimistic the trade can make its points well.  Nick Bish referred back to the workshops and consultation on the mandatory code, which led to a number of conditions being dropped including mandatory staff training and a compulsory Challenge-21 policy.

 “If the Government wants jobs — we can do that. An average pub employs around 10 people. If the Government wants to collect taxes — we can do that too. If our pubs are making profit then we pay more than our fair share. But to make that profit, we need to be left alone. The Government has to make its mind up — does it want to follow a [tabloid] agenda or back the industry and reap the associated benefits.”

 “We have to approach the consultation in a positive fashion.”

 The Government has already consulted a number of key partners prior to publishing this consultation, which has included holding 8 meetings with over 55 stakeholders from the on and off trade, alcohol producers, police and local authorities, health and voluntary sectors.

This consultation runs for 6 weeks from 28 July to the 8 September and covers England
and Wales, where these proposals apply. Responses can be submitted online through the Home Office website. The consultation document has been available on the Home Office website from today (noon on Wednesday 28 July 2010).  See  http://www.homeoffice.gov.uk/about-us/consultations/

The consultation seeks views on the implementation of the proposals rather than the proposals themselves stating: “as the key commitments outlined have been published in the Coalition Agreement, this consultation primarily seeks views on the implications of implementing the proposals rather than inviting views on the commitments themselves.”   Worryingly therefore, this now appears, for the most part, to be a done deal, with only the detail of how to actually bring in the changes, open for discussion.

New rules come in today requiring that all new door staff at bars and clubs must learn how to safely restrain and remove customers who have had one too many and are violent and drunk. For all existing door staff – no training is required. However, this too is coming under scrutiny and before long we could see such training becoming compulsory for all bouncers.

The mandatory training has been introduced after a number of high profile deaths and injuries in bars and nightclubs.

This all sounds well and good, and there is no price on public safety. However, many in the trade are not convinced that these measures will do anything other than add to the already over-burdened business of running a viable licensed premises. Doubts about the cost of the scheme, as well as whether the lessons are appropriate have already been raised. “We deplore anything that results in an injury,” said Nick Bish, the chief executive of the Association of Licensed Multiple Retailers (ALMR), “but if someone commits an assault then the law is there to prosecute them. We do not see the need for door staff to become paramedics or police. It’s a step too far.”

ALMR has also said that it is concerned that bouncers and other door staff are merely treated as a “cheap alternative to police officers.”

As reported by the BBC, according to a recent British Crime Survey 1 in 8 people who are regular nightclub visitors, is the victim of a violent crime every year, compared to 1 in 30 in the general population.

A poll of door supervisors by the Security Industry Authority (SIA) found 54% had been attacked at some point in their career rising to 94% in individuals with five years service or more.
Beware if you are going out on the town in Camden, a survey carried out of door staff in that London borough found 40 door staff were arrested for violent crimes while on duty from Juky 2007 to July 2009.

The SIA is aware of at least ten people who have died after being ejected from venues since 2003 although it accepts there is anecdotal evidence the real number “could be higher”.

Bouncers and other security staff already receive training in non-physical skills before they can legally work in the UK. The SIA already believes that it is essential that individuals working in the private security industry undergo a structured training programme that results in a recognised qualification. They have developed a competency (skills) requirement as part of thier licensing function. Individuals applying for a front line SIA licence must prove that they are properly qualified to do their job. If they don’t hold one of the SIA-endorsed qualifications then their licence application will be refused.

The SIA believe that this will result in a more competent and professional workforce. It will also improve the public image of the private security industry and make it more attractive to potential employees.

From 1 June that training must also include physical intervention techniques like safe restraint and ejection. The move is part of a widespread shake-up of the door supervisor licence which now includes lessons in first aid and terrorism awareness.

The training is only compulsory for first time door staff who have never worked in the industry before.

The Home Office is now consulting on measures to extend the new training to all existing bouncers with compulsory top up training every two years.

A final decision on this should be made in the next few months. Watch this space.

Do you think that it’s a good idea that new bouncers get this training (one of the things they’ll be taught is how to use handcuffs for restraint purposes….)?

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