Friday, 20 April 2012

The Wrong Arm of the Law ...

A recent judicial review of the Police's powers relating to closure notices and powers of arrest has thrown up some vital information for all licensees that should be invaluable if threatened with closure or arrest with regard to certain licensing offences.

The background to this case is that in February 2011, West Yorkshire Police mounted a series of five enforcement actions against The Bank, Wakefield. The Police served S19 closure notices and then immediately forced the Claimant through threats of arrest to the Designated Premises Supervisor to close the bar. The bar was duly closed on each occasion. The effect of the closure was the loss of profits both on the night of the closure and on subsequent trading nights too.

The police had, according to the owners of The Bank, relied on Home Office guidance that was, in effect, wrong in terms of the law (the Licensing Act 2003 and the Criminal Justice and Police Act 2001).

The law says that a closure notice under the Criminal Justice and Police Act 2001 (section 19) merely warns the licensee that if the matter of breach is not rectified within 7 days the police may apply to the magistrates’ court for a closure order pursuant to section 20 of the same act.

The claim also stated that while a breach of a licence condition is potentially a criminal offence under section 136 of the Licensing Act 2003, this does not automatically give rise to a power of arrest.

The Bank pointed out that arrest is governed by 24(5) of the Police and Criminal Evidence Act 1984, which provides strict conditions which have to be satisfied before a person may be arrested without a warrant. These include where the identity of the person arrested is unknown, where arrest is necessary to prevent a person suffering injury, or to prevent loss of or damage to property, to prevent an offence against public decency or unlawful obstruction of the highway, or harm to a child or a vulnerable person, or to allow prompt investigation of the offence to prevent disappearance of the person arrested.

Obviously, it will only be in very exceptional circumstances that such conditions are satisfied in the case of breach of licence conditions by licensed premises.  None of them was satisfied in the case of the Bank.

The Bank also claimed that its human right to trade and to rely on its licence had been abused by the Police actions. The unlawful threats by West Yorkshire Police to arrest the Designated Premises Supervisor if the premises did not close amounted to an unlawful interference with that right. As a result of closing the Claimant suffered loss of profits on the nights of the closure and damage to the goodwill of its business. Accordingly, the Bank claimed damages pursuant to section 8 of the Human Rights Act 1998 and/or section 31(4) of the Senior Courts Act 1981.

West Yorkshire Police conceded that the Guidance was unlawful, that its actions had been illegal and that it was liable to pay damages. The Home Office withdrew the on-line version of the Guidance and wrote to all Chief Constables pointing out the legal errors in the Guidance. However, The Bank continued to pursue the claim, because a more public acknowledgment of the true effect of the Criminal Justice and Police Act 2001 was required.

Mr. Justice Edwards-Stuart ruled that the Claimant was entitled to have recorded in a court order that the Guidance was unlawful.

The High Court has now approved a consent order requiring the Police and the Home Office to pay the Bank substantial undisclosed damages for loss of profit.

The order also records that the West Yorkshire Police and the Home Office accept that:

The service of a Closure Notice pursuant to section 19 of the Criminal Justice
Police Act 2001 does not:
a.       Require the premises to close or cease selling alcohol immediately; or
b.       Entitle the Police to require it to do so; or
c.       Entitle the Police to arrest a person on the sole ground of non-compliance with the Notice.”
The Police and the Home Office also agreed to pay the Claimants’ costs.

Michael Kheng (from Kurnia Licensing Consultants) stated:
“This was a clear case of over-enforcement causing damage to the goodwill of a business, not to mention the intimidation felt by the licensee confronted by police officers requiring him to close there and then. My client and I felt it right to pursue this matter to a judgment, so that the legal position is clearly established, to protect future licensees from similar conduct."

So my advice, in the unlikely event that you are confronted by this sort of Police action, is to refer them to the above acceptance of the law by the Home Office and to seek the advice of a licensing solicitor as soon as possible.

Grandma used to say that the police were a publican's best friend and in my experience she was right, but just like any organisation or person they are fallible. Hopefully the message has gone out throughout the land that this Judge Dredd style of interaction with licensees is not just unhelpful in our combined efforts to provide safe and regulated drinking, but is also just plain wrong.  I mean 5 enforcement actions? What did the Police do to pursue other avenues such as a review of the licence with the Local Authority, if things had come to such a state that 5 interventions were deemed appropriate?

With grateful thanks to Sarah Clover, Barrister, No 5 Chambers, Birmingham and Kurnia Licensing Consultants for the above explanation and for achieving clarity in this matter for all of us running licensed premises.

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