House of Lords - Explanatory Note
Licensing Bill [HL] - continued          House of Lords

back to previous text

ECHR considerations

195.     Convention rights may be engaged by clauses 118 and 119 which provide for applications for the grant and renewal of a personal licence to be determined by a licensing authority. If, which is debatable, a personal licence is properly to be regarded as property, then the power of a licensing authority to prevent such grant or renewal may constitute an interference with a person's enjoyment of his possessions and engage rights under Article 1 of Protocol 1 to the Convention (protection of property). However the grounds on which an application may be rejected can all be justified as being in accordance with the general interest, and as a proportionate measure to ensure that people with a personal licence are properly qualified and responsible individuals.

196.     Where a licensing authority holds a hearing to consider a police objection notice made in relation to the grant or renewal of a personal licence, it will act in a regulatory role, possibly engaging rights under Article 6 (determination of civil rights and obligations). Decisions made at such hearings are appealable to a magistrates' court, and are therefore compliant with Article 6.

197.     Clause 127 allows a court to order the forfeiture or suspension of a personal licence when the licence holder is convicted of an offence specified in Schedule 4. This provision is compatible with Article 6 since such an order will be made as part of the criminal sentence following a court hearing which is itself Article 6 compliant, and the order may be suspended pending appeal against the conviction or sentence, at the discretion of either the sentencing or the appellate court. The clause is also compatible with Article 1 of Protocol 1, because it is proportionate and in the public interest as being a measure helping to prevent crime, to allow the forfeiture or suspension of a personal licence in appropriate circumstances.

Clause 109 - Personal licence

198.     For the purposes of the Bill, this clause defines a personal licence as a licence granted by a licensing authority and permitting an individual to sell alcohol by retail or to supply alcohol by or on behalf of a club (in the latter case this would relate only to a supply authorised under a premises licence).

Clause 110 - The relevant licensing authority

199.     This clause provides that the relevant licensing authority in relation to a personal licence is the authority which originally granted the licence. The effect of this is that if a personal licence holder works in the area of a different licensing authority, the relevant licensing authority for the purpose of renewals etc will be unchanged.

Clause 111 - Meaning of "relevant offence" and "foreign offence"

200.     For the purposes of Part 6 of the Bill, relevant offences are defined as offences listed in Schedule 4. In subsection (2) the Secretary of State is given a power (subject to the negative resolution procedure) to amend that list. Subsection (3) provides that for the purposes of Part 6 of the Bill, a 'foreign offence' is defined as an offence (other than a relevant offence) under the law of anywhere outside England and Wales. The significance of designation as a 'relevant offence' is that a conviction for such an offence (or a comparable foreign offence), unless spent, must be taken into account by a licensing authority in its consideration of an application for the grant or renewal of a personal licence (see clauses 118 and 119). If an existing personal licence holder is convicted of a relevant offence, his licence may be forfeited or suspended (see clause 127).

Clause 112 - Meaning of "conviction"

201.     This clause sets the meaning of 'conviction' for the purposes of Part 6 of the Bill. Subsection (1) provides that convictions must be disregarded when spent under the Rehabilitation of Offenders Act 1974. Subsections (2) and (3) provide that convictions for violent offences or sexual offences (as defined) or for a relevant offence under the Theft Act 1968, the Theft Act 1978, or the Forgery and Counterfeiting Act 1981 are to be disregarded for the purposes of clauses 118, 119 and 121 to 123 if a custodial sentence of 30 months or more was not imposed. The effect of this is that a licensing authority will be required to notify only offences which attract such a sentence to the chief officer of police when considering applications for the grant or renewal of a personal licence. A personal licence holder will be under a duty to notify the licensing authority of a subsequent offence only if it attracts such a sentence. Thus in respect of the offences listed in subsection (3), only behaviour which the sentencing court regarded as particularly serious is to be relevant to the consideration of whether a person should be allowed to hold a personal licence.

Clause 113 - Period of validity of personal licence and

Clause 114 - Surrender of personal licence

202.     Clause 113 provides that a personal licence is valid for 10 years unless before then it is surrendered by the holder, revoked by the licensing authority, forfeited or suspended by the court. At the end of that period, the holder may apply for renewal to the licensing authority which issued the original licence and the authority can renew the licence for a further ten years or refuse the application for renewal. Licences do not have effect during periods of suspension. In some circumstances, a licence may extend beyond 10 years, pending a renewal or disposal of an appeal; for example, where an application for renewal of a personal licence has not been determined prior to the expiry of the 10 year validity period (see clause 117). Clause 114 provides that a personal licence holder may surrender his licence and sets out the procedural requirements of such a surrender.

Clause 115 - Application for grant or renewal of personal licence

Clause 116 - Individual permitted to hold only one personal licence

Clause 117 - Licence continued pending renewal

203.     These clauses set out the steps an individual must take to apply for the grant or renewal of a personal licence. An application for the grant of a personal licence must be made, ordinarily, to the authority for the area in which the applicant is normally resident. Applications for renewal are to be made to the licensing authority which originally granted the licence.

204.     All applications must be made in the prescribed form and accompanied by the prescribed fee, information and documents. Applications for renewal can only be lodged within a two-month period beginning three months before the licence's expiry. If the licence expires before the application for renewal has been determined by the licensing authority, the licence remains in effect until a decision is made.

205.     Only one licence can be held by a single individual at any one time.

Clause 118 - Determination of application for grant

206.     This clause prescribes the manner in which a licensing authority must determine an application for a personal licence. The criteria for the grant of a licence are that—

  • the applicant is at least 18 years old

  • he possesses an accredited licensing qualification or is of a prescribed description (see paragraph 209)

  • he has not had a personal licence forfeited in the previous five years

  • he has not been convicted of any relevant offences (see Schedule 4) or foreign offences (see paragraph 200)

207.     Subsections (3) to (6) provide that the licensing authority must reject the application for a personal licence if the applicant fails to meet one of the first three eligibility criteria. If these are met but the applicant has been convicted of a relevant offence or a foreign offence, the licensing authority may grant the personal licence only after consulting the police. The chief officer of police must have regard to the conviction for any relevant offence, or for any foreign offence which he considers comparable to a relevant offence. Within 14 days of being notified, the chief officer must give to the licensing authority notice of objection to the grant of a licence if he is satisfied that granting the licence would undermine the prevention of crime and disorder (referred to here as "the crime prevention objective"). In the absence of such an objection, the licensing authority must grant the application.

208.     When an objection is lodged by the police, the licensing authority must hold a hearing to decide whether to reject or grant the licence, and must give reasons for its decision. The need for a hearing may be dispensed with by agreement of the authority, the applicant and the police.

209.     For the purpose of this clause, the 'licensing qualification' must be recognised by the Secretary of State (by administrative action) or must be an equivalent qualification obtained in Scotland, Northern Ireland or an EEA state other than the UK.

Clause 119 - Determination of application for renewal

210.     The licensing authority must renew a personal licence except where the applicant has been convicted of one or more relevant offences since the original grant of the licence or its last renewal. If such a conviction has occurred, the licensing authority must consult with the police and give them the opportunity to object to the renewal of the personal licence where they are satisfied that to do so would undermine the crime prevention objective. Where there is no objection the renewal must be granted. If the police object, a hearing must be held (unless the licence holder, the police and the licensing authority agree that this is unnecessary) and the authority must give the reasons for its decision.

Clause 120 - Notification of determinations

211.     This clause requires the licensing authority to notify the applicant and relevant chief officer of police of any decision to grant an application, explaining the decision in cases where an objection notice was given by the police. Notice of decisions to reject applications and the reasons for the decision must be given to applicants and the police.

Clause 121 - Duty to notify licensing authority of convictions during application period

212.     Applicants convicted of a relevant offence or foreign offence (see clause 111) in the period between an application being made and its determination (or withdrawal) must notify the relevant licensing authority of the conviction as soon as possible. Failure to do so is an offence.

Clause 122 - Convictions coming to light after grant or renewal

213.     This clause applies where an applicant for the grant or renewal of a personal licence is convicted of a relevant offence in the period between the application being made and its determination but knowledge of the conviction emerges only after the licence has been granted or renewed. The licensing authority may revoke a personal licence, after consultation with the police.

214.     The clause requires the licensing authority to consult the police on becoming aware of such a conviction. The police will then have the opportunity to give the licensing authority notice that they object to the continuation of a licence where they believe that that would undermine the crime prevention objective. If the police object, a hearing must be held by the licensing authority (unless the licence holder, the police and the licensing authority agree that this is unnecessary). The licensing authority must give the reasons for its decision to the offender and to the police. A decision under this clause does not have effect pending an appeal.

Clause 123 - Form of personal licence

215.     This clause makes provision for a personal licence to be in a prescribed form and lists the basic requirements as to the content of a licence, including a record of any convictions for relevant or foreign offences.

Clause 124 - Theft, loss, etc. of personal licence

216.     Personal licence holders will be able to apply to the licensing authority that issued the licence for a copy if the licence has been lost, stolen, damaged or destroyed. If lost or stolen, this should be reported to the police before a copy will be issued. There may be a fee prescribed for the issue of replacement documents. The Bill applies to a copy in the same way as it applies to the original.

Clause 125 - Duty to notify change of name or address

217.     This clause provides that the holder of a personal licence must notify the licensing authority of any change of name or address. Failure to do so is an offence.

Clause 126 - Duty to notify court of personal licence

Clause 127 - Forfeiture or suspension of licence on conviction for relevant offence

218.     Where the holder of a personal licence is charged with a relevant offence, he must produce the licence to the court before the case against him is first heard in court (or if that is not possible, he must explain why). If an individual is granted a personal licence after being charged, he must produce the licence to the court (or explain why he cannot). A licence holder must also notify the court if, after having first produced his licence, the licence is renewed, surrendered or revoked. Failure to comply with any of these requirements is an offence.

219.     Upon conviction of a personal licence holder of a relevant offence, the court may forfeit the personal licence or suspend it for up to 6 months. An order to forfeit or suspend the licence may itself be suspended by the convicting court allowing the licence to continue in force pending an appeal.

Clause 128 - Powers of appellate court to suspend order under section 127

220.     Orders made under clause 127 may be suspended by the court on an appeal or an application for leave to appeal or an application for a quashing order by a defendant, allowing him to continue trading, if appropriate, while the appeal is being considered. If the court suspends the order it must notify the relevant licensing authority of that fact.

Clause 129 - Court's duty to notify licensing authority of convictions

221.     This clause sets out the obligations of the court to the relevant licensing authority where a personal licence holder is convicted of a relevant offence (which attracted a sentence of at least 30 months' imprisonment and as a consequence of which the court made an order to forfeit or suspend the personal licence). An appropriate officer of the court (defined in subsection (6)) must notify the licensing authority of—

  • the licence holder's name and address

  • the nature and date of the conviction

  • details of any sentence passed.

222.     Where a conviction is quashed or a sentence altered on appeal, or where the Court of Appeal takes action in relation to a sentence it regards as unduly lenient, the court concerned must notify the relevant licensing authority.

Clause 130 - Licence holder's duty to notify licensing authority of convictions

223.     This clause requires that, where the holder of a licence is convicted of a relevant offence or foreign offence, and the courts are not aware of the existence of the licence, the holder must notify the licensing authority as soon as possible about the conviction and the outcome of any appeal against a conviction. Failure to comply with this clause is an offence.

Clause 131 -Form etc. of applications and notices under Part 6

224.     This clause allows for the detail of the form, manner and content of applications, and any accompanying documents or fees, to be set out in regulations.

Clause 132 - Licensing authority's duty to update licence document

225.     Where certain changes have been made to the terms or effect of a personal licence, (for example, where it has been renewed, or a change of details has been notified), the licensing authority must make the necessary amendments to the licence.

226.     The licensing authority may require the personal licence holder to present the licence for amendment. Failure by the licence holder to comply with this obligation, without reasonable excuse, is an offence.

Clause 133 - Licence holder's duty to produce licence

227.     This clause applies where the holder of a personal licence is on premises to sell, or authorise the sale of, alcohol by virtue of a premises licence or temporary event notice. A constable or officer of the licensing authority may require the holder to produce his personal licence. Failure to produce it is an offence.

PART 7: Offences

ECHR considerations

228.     This Part contains a number of criminal offences and in each case Article 6 (determination of civil rights and obligations) and Article 1 of Protocol 1 (protection of property) will be engaged. Convictions for such offences can be imposed only following a court hearing, and defendants are treated as having committed no offence until sufficient evidence has been adduced for the prosecution to satisfy the court that the defendant is guilty beyond reasonable doubt of the offence charged. The provisions are therefore compatible with Article 6(2).

229.     These criminal offences also engage Article 1 of Protocol 1 since they have the effect of restricting what an owner of alcohol may lawfully do with his property, and otherwise impose limitations on a person who derives economic benefit from the running of a business involving a licensable activity. However it is established case law under the ECHR that the controlling of the use of alcohol can be a legitimate aim in the general interest, and this argument has particular strength in relation to the control of the sale to and consumption by minors. The creation of all of the offences relating to minors is a proportionate response to the importance of the social need to prevent consumption by minors when balanced with the interests of individuals to dispose of their property in the way they choose.

230.     The offence in clause 134 of carrying out licensable activities without due authorisation may amount to an interference with rights under Article 10 (freedom of expression) since it could indirectly have the effect of imposing restrictions on performances by artists and musicians. However any such interference would be justified under Article 10(2) as being necessary in a democratic society on grounds of public safety, the prevention of crime and disorder and the protection of the rights of others, since it is central to the regime for the regulation of licensable activities that the activities may be carried out only under an authorisation.

Clause 134 - Unauthorised licensable activities

231.     This clause makes it an offence to carry on or attempt to carry on a licensable activity without the authorisation provided by, as appropriate, a premises licence, a club premises certificate or a temporary event notice. It is also an offence knowingly to allow such an activity to be carried on. Certain activities which would otherwise fall within the definition of "licensable activities" in clause 1(1) are excluded from that definition by clauses 170 to 172. This provision is central to the enforcement of the licensing regime introduced by the Bill.

Clause 135 - Exposing alcohol for unauthorised sale

232.     This clause makes it an offence to expose alcohol for sale by retail (see the definition in clause 187) in circumstances where the sale would not be under and in accordance with a premises licence, club premises certificate or temporary event notice. The effect of this provision is that an offence can be committed in a case where no sale or attempted sale is in fact made. Subsection (4) provides that a court which convicts a person of this offence may order the confiscation of the alcohol in question and its containers, which may then be either destroyed or dealt with as the court orders.

Clause 136 - Keeping alcohol on premises for unauthorised sale

233.     This clause makes it an offence to keep alcohol on premises with the intention of selling it by retail (see the definition in clause 187) or supplying it (by or on behalf of a club or to the order of a member of the club) unless that sale or supply would be under and in accordance with an authorisation. Subsection (5) provides that a court which convicts a person of this offence may order the confiscation of the alcohol in question and its containers, which may then be either destroyed or dealt with as the court orders.

Clause 137 - Defence of due diligence

234.     This clause provides that a person who is charged with the offence of carrying on an unauthorised licensable activity, exposing alcohol for unauthorised sale or keeping alcohol in premises for unauthorised sale or supply has a defence if his act or omission was mistaken, was due to his relying on information given to him, was the fault of another person or was due to some cause beyond his control, and he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Clause 138 - Allowing disorderly conduct on licensed premises etc.

235.     This clause makes it an offence knowingly to allow disorderly conduct on licensed premises and thus re-enacts part of the existing offences in sections 172(1) and 172A(1) of the Licensing Act 1964. Subsection (2) of this clause sets out the categories of person who may commit the offence. These include any person who works at the premises in a capacity that gives him the authority to prevent the conduct, a premises licence holder or designated premises supervisor, an officer or member of a club who is present at the time of the disorder and who has authority to prevent it, and a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises.

Clause 139 - Sale of alcohol to a person who is drunk

236.     This clause makes it an offence to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person, on relevant premises (see the definition in clause 156). The clause thus effectively re-enacts the existing offences in sections 172(3) and 172A(3) of the Licensing Act 1964. Subsection (2) of this clause sets out the categories of person who may commit the offence. These include any person who works at the premises in a capacity that gives him the authority to sell the alcohol, a premises licence holder or designated premises supervisor, an officer or member of a club who is present at the time of the sale and who has authority to prevent it, and a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises. Subsection (3) provides that the offence also covers supplies of alcohol by or on behalf of a club to or to the order of a member of the club.

Clause 140 - Obtaining alcohol for a person who is drunk

237.     This clause makes it an offence knowingly to obtain or attempt to obtain alcohol for consumption on relevant premises (see the definition in clause 156) by a person who is drunk. The clause thus effectively re-enacts the existing offence in section 173(1) of the Licensing Act 1964.

Clause 141 - Failure to leave licensed premises etc.

238.     This clause provides that a person who is drunk or disorderly commits an offence if he fails to leave relevant premises (see the definition in clause 156) at the request of a police constable or a person listed in subsection (2), or if he enters (or tries to enter) such premises when asked not to by such a person. No offence will be committed if the person has a reasonable excuse, for example, if he is disabled or injured and so unable to leave the premises. The persons listed in subsection (2) are—

  • any person who works at the premises in a capacity that gives him the authority to make that request,

  • a premises licence holder or designated premises supervisor,

  • an officer or member of a club who is present at the time of the sale and who has authority to make that request, and

  • a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises.

239.     Subsection (4) provides that a police constable must help to expel drunk or disorderly individuals from relevant premises, or help to prevent them entering as the case may be, if requested to do so by anyone listed above. The clause thus re-enacts the provisions of section 174 of the Licensing Act 1964 but unlike that section is not limited to premises with a licence for alcohol sales.

Clause 142 - Keeping of smuggled goods

240.     This clause provides that it is an offence knowingly to keep or allow to be kept, on relevant premises (see the definition in clause 156)), any unlawfully imported goods or goods on which duty has not been paid. Subsection (2) sets out the categories of person who may commit the offence. These are—

  • any person who works at the premises in a capacity that gives him the authority to prevent those goods from being kept on the premises,

  • a premises licence holder or designated premises supervisor,

  • an officer or member of a club who is present at the time when the goods are kept on the premises and who has authority to prevent them being so kept, and

  • a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises.

Subsection (4) provides that a court which convicts a person of this offence may order the confiscation of the goods in question and their containers, which may then be either destroyed or dealt with as the court orders.

 
previous Section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2002
Prepared: 19 November 2002