D. Part 1, Chapter 2: Combatting alcohol-related
11. These provisions include:
(i) a nation-wide power to make orders designating
specified public places as being, in effect, alcohol-free zones;
(ii) a power for a senior police officer to make
a closure order in respect of premises for a period of up to 24
(iii) amendments to the law relating to alcohol and
(iv) the extension to bar staff of criminal liability
in relation to certain responsibilities previously imposed only
(i) Prohibiting alcohol in designated public places:
12. These clauses would allow local authorities to
make orders designating identified public places for the purposes
of the Chapter if satisfied that nuisance or annoyance to members
or a section of the public, or disorder, has been associated with
the consumption of intoxicating liquor there.
When an order has been made in relation to a public place, a constable
will be entitled to require a person to stop consuming intoxicating
liquor there if he reasonably believes that the person is or has
been consuming intoxicating liquor, or intends to consume it,
in the designated public place. The constable will also have power
to require such a person to surrender any intoxicating liquor
or unsealed container for such liquor. Failing without reasonable
excuse to comply with a requirement under this provision would
be an offence.
13. This makes nationwide provision equivalent to
the local arrangements already made under bylaws by 113 local
authorities under section 235 of the Local Government Act 1972
and other powers. The Home Office told us that the extension proposed
in the Bill is a response to the well-established link between
alcohol consumption and violent crime,
and is intended 'to provide a consistent set of powers backed
by a power of arrest which may be adopted by local authorities
in a quicker and less bureaucratic process than the adoption of
14. The power to designate public places for this
purpose is very wide. The test in clause 15(2), 'if they are satisfied
that...', is subjective, making it difficult to challenge a designation
by way of judicial review. 'Public place' is defined as 'any place
to which the public or any section of the public has access, on
payment or otherwise, as of right or by virtue of express or implied
Thus a place which is privately owned and enclosed behind walls
or fences may be a designated public place in which consumption
or possession of alcohol can be effectively proscribed by a constable,
if the local authority is satisfied that the conditions mentioned
in clause 13(2) are met.
15. These provisions have the capacity to interfere
with the right to respect for private life and the home under
ECHR Article 8.1 (even if the place in question is defined as
public for the purposes of clause 15), and with the right to quiet
enjoyment of property under Article 1 of Protocol No. 1. It is
likely that the interference with the freedoms in question would
be accepted as pursuing a legitimate purpose under Art. 8.2 and
a public interest or general interest within Art. 1 of Protocol
16. However, we were concerned about the possibility
that the provisions might fail to satisfy the standards necessary
to justify the intrusion under those Articles in two respects:
the requirement for legal certainty,
and the need for a fair balance to be struck between competing
interests. We raised these matters with the Home Office.
17. As to the 'fair balance' point in relation to
the right to property under Article 1 of Protocol No. 1, we accept
that confiscation of property is likely to be justified since
'the value of items confiscated is likely to be minimal and any
interference which there may be is justified in the public interest
in preventing injuries and disorder',
as long as police officers are guided by those objectives when
exercising their discretion.
18. In respect of legal certainty, we queried the
breadth of the definition of 'public place' in clause 16(1), including
'any place to which the public or any section of the public has
access, on payment or otherwise, as of right or by virtue of express
or implied permission'. The Home Office
made it clear that the definition was intended to allow private
places to be designated if, like shopping malls, they were places
to which the public have access. In his oral evidence to the Committee,
the Minister pointed out that the definition of 'public place'
had to be read together with the restriction to places 'that have
experienced nuisance, annoyance or disorder arising from public
In the light of that, we consider that the test of certainty is
19. In relation to the balancing of competing interests
under Article 8.2, arising from the requirement that an interference
with the right to respect for private life should be 'necessary
in a democratic society', we consider that it will primarily be
a matter for local authorities to ensure, case by case, that the
power is used only in circumstances where the evidence clearly
shows that there is a pressing social need to prevent alcohol-related
disorder or crime, and that the interference with rights caused
by the designation of a specific public place is proportionate
to that need.
We were reassured to learn that the regulations to be made under
clause 13(4) will include a requirement for consultation, before
designation, with those whose interests are affected, particularly
owners of land to be included in a proposed designated area.
We were surprised that the drafting of the Bill would, on the
face of it, allow an area to be designated as a result of a single
occasion of disorder at any time in the past. The Minister accepted
that this raised an issue of proportionality. He did not believe
that any limitation by reference to a period of time would significantly
reduce the risk of a lack of proportionality, although he agreed
to think about the matter.
He was content to leave to the judgment of local authorities the
number of incidents which would justify designating an area under
particular circumstances, allowing them to take account of local
circumstances (such as an impending football match).
We accept that a requirement that designation should not take
place after fewer than (say) two incidents, or more than (say)
six months after the last incident, would be to some degree arbitrary.
Yet we remain of the view that the power is open to abuse, and
hope that steps will be taken to reduce the risk that aggrieved
persons will feel the need to challenge designations in court.
The Minister accepted the need for the Government to monitor the
use of the power, which had been raised during the Committee Stage
of the Bill in Standing Committee F in the House of Commons.
We agree, and hope that the method of monitoring will enable the
Government to ensure that the powers are being used in a proportionate
20. We conclude that whilst the provisions interfere
with the right to respect for private life, they meet the needs
of legal certainty and pursue a legitimate aim. However, they
could be used in an arbitrary or disproportionate way, and we
therefore consider that there may be a need for additional safeguards.
For example, each House may wish to ensure that local authorities,
when deciding whether to designate a particular place, will be
(a) of the need for evidence of a current threat
which makes the designation of that place appropriate and necessary;
(b) of the need to take particular note of evidence
about the frequency of occasions of alcohol-related disorder or
crime in the area over the period starting six months before the
decision is taken.
(ii) Closure orders made by the police in respect
of licensed premises
21. Clause 17 of the Bill would amend the Licensing
Act 1964, adding a power for a senior police officer to make a
closure order requiring identified licensed premises to remain
closed for up to 24 hours if he reasonably believes that disorder
is likely on or in the vicinity of the premises, and that closure
of the premises is 'necessary in the interests of public safety',
or if he reasonably believes that excessive noise emanating from
the premises is causing a disturbance to the public, and that
closure of the premises is necessary to prevent the disturbance
(new section 179A(1) inserted into the 1964 Act). Justices would
be empowered to extend the order (new section 179B), and pending
a hearing before the justices it could be extended for up to 24
hours at a time by the senior police officer (new section 179C).
A closure order might lead to the revocation of the publican's
licence (new section 179E).
22. A closure order may interfere with the freedom
to use one's premises for commercial purposes, causing a loss
of income. It may also lead to the cancellation of the licence.
The Government accept that these restrictions interfere with rights
under Article 1 of Protocol No. 1.
Under that Article, any interference must be 'provided for by
law', introducing a requirement for legal certainty.
23. The Government accept the need for certainty,
but stress the importance of making the power sufficiently flexible
to allow it to be used in response to a wide range of conditions
which amount to 'disorder' or 'excessive noise'. In relation to
noise, the standard needs to allow the police to take account
of 'factors such as the time of day, whether the neighbourhood
is residential, and whether the noise is prolonged or short-lived.'
The Government also point out that there are additional safeguards
for rights, including the police officer's reasonable belief that
it is necessary to make an order in the interests of public safety
or to prevent the disturbance, taking account of the licensee's
conduct, and the need for the order to be considered by a court.
We agree that these matters are relevant to the existence of a
pressing social need to interfere with a right, and we are satisfied
that the interference is not disproportionate.
24. Clause 19 would allow a constable or a local
authority to serve a closure notice in respect of premises which
the constable or authority is satisfied are being used for the
unlicensed sale of intoxicating liquor for consumption on, or
in the vicinity of, the premises. It appears that this notice
would have no immediate legal effect in itself, but would be a
condition precedent to the constable or local authority applying
to a magistrates' court, which would then be empowered to make
a closure order under clauses 20 and 21. The process as a whole
engages the right to peaceful enjoyment of possessions under Article
1 of Protocol No. 1, but in our view the standard for serving
the notice is adequately precise, and the order would appear to
serve a legitimate public or general interest. Any decision to
make a closure order would be taken by a magistrates' court after
an inter partes hearing, with provision in clauses 22 to
24 for orders to be terminated, discharged or appealed against.
In view of this, we are persuaded that the safeguards are sufficient
to ensure that a fair balance can be struck in each case between
the public interest and the interests of the occupiers of the
premises, including third parties who share the premises in question.
(iii) Confiscation of alcohol, etc., from young
25. Clause 29 would extend section 1(1) of the Confiscation
of Alcohol (Young Persons) Act 1997 by permitting a constable
to require a young person to surrender an unsealed container for
intoxicating liquor, as well as intoxicating liquor itself. This
engages ECHR Article 1 of Protocol No. 1, but is unlikely to present
special difficulties of justification by reference to human rights
standards in most cases, in view of the public interest in preventing
under-age drinking and the fact that the value of the property
confiscated will usually be small.
26. Clause 30 would change the defence available
to a licensee charged with selling intoxicating liquor to a person
under the age of 18. The defence would be available under section
169A of the Licensing Act 1964 only if the defendant proved both
that he positively believed that the person was not under 18,
and either (i) that he had taken all reasonable steps to
establish the person's age (for example, by asking the person's
age, unless no reasonable person would have believed the answer),
or (ii) that nobody could reasonably have suspected from his appearance
that the person was under 18. This places on the defendant the
burden of proving certain facts in order to establish innocence
(in contrast to the usual rule, which places on the prosecutor
the burden of establishing all facts necessary to establish guilt).
Such a provision ('a reverse-onus rule') potentially engages the
licensee's right to a fair trial under ECHR Article 6 as it has
been interpreted by the European Court of Human Rights.
27. The reverse-onus provision in clause 30 calls
for particularly careful scrutiny. None the less, we have come
to the conclusion that this particular provision does not give
rise to concerns about compatibility with human rights, taking
into account the following features of clause 30:
(a) most of the matters about which the defendant
would have to persuade the court (his belief as to the age of
the purchaser of liquor, and the steps taken to establish his
age) would be within the defendant's special knowledge (although
this does not apply to evidence 'that nobody could reasonably
have suspected from [the purchaser's] appearance that the person
was under eighteen');
(b) the requirement to prove that the defendant took
all reasonable steps is not excessively burdensome in view of
new section 169A(2A) which clause 32 would insert into the Licensing
Act 1964, requiring merely that the defendant asked the purchaser
for evidence of his age, unless the prosecution shows that no
reasonable person would have been convinced by that evidence;
(c) does not turn the offence into one of strict
(d) the offence is of a regulatory nature, and conviction
does not carry with it great moral obloquy;
(e) the penalty which may be imposed on conviction
is limited to a fine.
28. Clause 31 allows a young person to be used as
an agent provocateur to induce a licensee or his or her
staff to sell intoxicating liquor to someone under the age of
18. The provision itself is unexceptionable on human rights grounds
if the sole purpose is to indicate to officers when those employed
in licensed premises merit further investigation or observation.
However, if the evidence from the young person is used at a trial
of the licensee for a criminal offence, or for the purposes of
proceedings to strip him or her of the licence, there is a risk
that it will deprive the licensee of a fair hearing, violating
Article 6.1 of the ECHR, although the caselaw of the European
Court of Human Rights on this point is not yet settled.
The English Court of Appeal suggested in R. v. Shannon
that admitting evidence of agents provocateurs would make
a trial unfair, violating Article 6.1, only if (a) the agents
provocateurs in that case were police officers, and (b) the
officers had actively instigated or incited the offence. In Shannon,
the agent provocateur had been a News of the World
journalist posing as an Arab sheikh in search of drugs, and there
was said to have been no active instigation of the offence by
the journalist. In those circumstances, the evidence had been
rightly admitted by reference to ordinary English law.
29. In the context of clause 31 of the Bill, where
a youth seeks to buy intoxicating liquor at the request of a constable
or a weights and measures inspector the state is clearly responsible
for the youth's actions (unlike the position in relation to the
undercover journalist in R. v. Shannon). If the youth instigates
the offence, and there is no evidence that the licensee or staff
would have been likely to commit the offence without that instigation,
there is a real danger that admitting the evidence of the youth
would be regarded as rendering the trial unfair. However, that
would stem from the use made of the youth's evidence in any given
30. We have therefore concluded that the provisions
of clause 31 in themselves are not necessarily incompatible with
any Convention right. However, this conclusion is tempered by
the uncertainty surrounding this area of law, and the potential
for further development of it, either by courts in England and
Wales under the Human Rights Act 1998 (the provision in clause
31 would not extend to the rest of the United Kingdom) or by the
European Court of Human Rights.
(iv) A new offence of permitting drunkenness and
certain conduct on licensed premises
31. Clause 32 would insert a new section 172A in
the Licensing Act 1964, making it an offence for a person in charge
of or working on licensed premises to permit certain kinds of
behaviour on the premises. The types of conduct include drunkenness,
or any violent, quarrelsome or riotous conduct: new section 172A(1).
It would also be made an offence for staff to sell intoxicating
liquor to a drunken person: new section 172A(3). As the Government
made clear to us, the purpose is to impose on all bar staff responsibilities
equivalent to those already imposed on licensees for maintaining
standards of good order in licensed premises, and to enforce the
responsibilities with criminal sanctions.
This is thought to be desirable because, as the Minister said:
'the nature of the licensed industry has changed
significantly over a period, away from a large number of individual
licensees and publicans to a number of major organisations who
employ and retain staff to run their pubs and clubs, and so on.
We think that there needs to be absolute clarity in the legal
rights and responsibilities. There should not be an argument that
so and so was not the licensee and therefore has no responsibility.'
32. We sympathise with this, and welcome the commitment
to legal certainty. We consider that certainty could be further
enhanced by revisiting the definition of the offence. It employs
archaic language ('any violent, quarrelsome or riotous conduct')
some of which (notably 'quarrelsome conduct') is not self-evidently
in tune with the requirements of legal certainty in an era of
human rights. We consider that the clause engages the right of
patrons of bars to freedom of expression under Article 10 ECHR.
In the course of his oral evidence to the Committee, the Minister
accepted that imposing a legal duty on bar staff to remove a person
for quarrelsome conduct could indirectly interfere with that person's
right to freedom of expression,
and that even the word 'drunkenness' might not be as certain as
had originally been thought,
despite having been in use in legislation since 1862 in Scotland
and 1872 in England and Wales.
We are therefore glad to learn that the Government are reviewing
the whole of liquor licensing law.
We hope that the opportunity will be taken to ensure that adequate
legal certainty and proportionality can be achieved in the definition
of criminal offences. In the meantime, it is important that bar
staff are not unfairly treated, and in particular that clause
32 is operated in a way which respects the Government's intention,
as expressed to us, that expulsion from licensed premises 'will
be reserved for seriously disruptive or threatening individuals.'
12 Clause 13. Back
Clause 12. Back
Home Office Memorandum, paras. 6 and 7. Back
Home Office Memorandum, para. 8. Back
Clause 16(1). Back
Annex 2 provides a brief explanation of the principle of legal
Home Office Memorandum, para. 11. Back
Home Office Memorandum, para. 10. Back
Answer to Q. 3, referring to what is now clause 13(2) of the Bill. Back
Annex 2 provides a brief explanation of the principles of necessity
and proportionality. Back
Home Office Memorandum, para. 12. Back
Oral evidence, answer to Q. 4. Back
Oral evidence, answer to Q. 5. Back
Oral evidence, answer to Q. 6. Back
Home Office Memorandum, para. 15. See Tre Traktorer Aktiebolag
v. Sweden (1989) 13 EHRR 309, Eur. Ct. HR, and the submission
to the Home Office by Mr. Martin F. Walsh, Time for Reform:
Proposals for the Modernisation of our Licensing Laws-Some Personal
Thoughts, reprinted at pp. 27-34 of our First Special Report
(especially at paras. 19-27). Back
Home Office Memorandum, para. 16. Back
Home Office Memorandum, paras. 17-18. Back
Annex 2 contains a brief explanation of the relationship between
reverse-onus rules and the right to a fair trial. Back
Compare Teixeira de Castro v. Portugal, Eur. Ct. HR, (1998)
28 EHRR 101, with Schenk v. Switzerland, Eur. Ct. HR, (1988)
13 EHRR 242. For equivalent cases in the United Kingdom, see
R. v. Shannon  1 WLR 51 at pp. 69-70, and R. v.
Hardwicke and Thwaites (unreported), 10 November 2000, CA.
Annex 2 contains a brief account of this caselaw. Back
 1 WLR 51 at pp. 69-70. Back
See R. v. Christou  QB 979, CA; R. v. Smurthwaite
 1 All ER 898, CA; R. v. Chalkley  QB 848,
Home Office Memorandum, paras. 20 and 23. Back
Oral evidence, answer to Q. 22. Back
Oral evidence, answers to QQ. 14 and 20. Back
Oral evidence, answer to Q. 12. Back
Home Office Memorandum, paras. 20 and 21; Home Office Supplementary
Memorandum para. 14; oral evidence, answer to QQ. 10 and 13. Back
The White Paper, Time for Reform: Proposals for the Modernisation
of our Licensing Laws, Cm. 4696 (April 2000), elicited relevant
submissions by the Justices' Clerks' Society and Mr. Martin F.
Walsh, provided to us by the Home Office, and reproduced at pp.
23-34 of our First Special Report. Back
Home Office Memorandum, para. 24. Back