NATIONAL PUBWATCH LEGAL ROUNDUP 2018 JAMES RANKIN BARRISTER

NATIONAL PUBWATCH - LEGAL ROUND-UP 2018 JAMES RANKIN BARRISTER FRANCIS TAYLOR BUILDING www. ftbchambers. co. uk James. rankin@ftb. eu. com 1

RECENT & PROPOSED REFORMS • Modern Crime Prevention Strategy 2016 • Policing and Crime Act 2017 • Immigration Act 2016 • Psychoactive Substances Act 2016 • Brexit – fees, alcohol pricing and jobs

IMPACT OF BREXIT • 40% of workers in leisure and hospitality sector from EU. 60% of workers international. • Kate Nicholls (ALMR): “The impact of the vote is already huge and it is crucial that we hit the ground running to ensure continued support for businesses. We want to be on the front lines ensuring that confidence and investment is not unduly undermined by any future instability, and that the sector knows where it stands. . .

IMPACT OF BREXIT …Licensed hospitality is crucial to the UK’s economy, generating 1 in 8 of all new jobs over the past two years. Crucially, around 60% of our sizeable workforce comes from abroad and 40% from EU states. The Government needs to establish a clear and concise roadmap to provide reassurances for businesses and employees and the ALMR stands ready to assist.

IMPACT OF BREXIT “…The Government must also act to safeguard against businesses costs spiralling out of control and to protect investment. We need a strong and unambiguous message from the Government that it stands ready to act to in the best interests of UK businesses. The ALMR is working hard to provide its members with a sense of clarity and we are eager to work closely with Government to provide support for licensed hospitality. ”

BREXIT - LICENSING FEES • R (Hemming t/a Simply Pleasure) v Westminster City Council [2015] UKSC 25 -v-

BREXIT - LICENSING FEES • Locally set fees/full cost recovery – new s. 197 A & B already inserted into LA 2003 • Uncommenced pending Local Government Association evidence to HMG.

BREXIT - MINIMUM UNIT PRICING The Scotch Whisky Association (& Others) -v. The Lord Advocate & The Advocate General for Scotland ECJ (2 nd Ch), C-333/14 (23. 12. 15)

BREXIT - MINIMUM UNIT PRICING • Alcohol (Minimum Pricing) (Scotland) Act 2012 • Alcohol (Minimum Price per Unit) (Scotland) Order 2013 – sets MUP at 50 p • Treaty on the Functioning of the European Union (“TFEU”) – Articles 34 & 36 – proportionality test? • Scottish Crt of Session Ruling, 21. 10. 16: [2016] CSIH 77 • Supreme Court [2017] UKSC 76 (15 th November 2017)

BREXIT - IMPACT • Deemed grants of licences if delay – article 19 TFEU • Alcohol sales at petrol station – s 176 LA 2003, article 14 TFEU

MODERN CRIME PREVENTION STRATEGY 2016 Home Office, March 2016

MODERN CRIME PREVENTION STRATEGY 2016 • 6 key drivers of crime: • • • Opportunity Character Effectiveness of Criminal Justice System Profit Drugs Alcohol

MODERN CRIME PREVENTION STRATEGY 2016 • “More powers for local authorities & police” • Improve late-night levy by making it “more flexible for local areas, fairer to business and more transparent”. • Greater role for Police & Crime Commissioners - give them right to request that local authorities consult on introducing a late-night levy. • Put Cumulative Impact Policies on statutory footing

POLICING & CRIME ACT 2017

POLICING & CRIME ACT 2017 • Royal Assent : 31 January 2017 • Part 7 impacts on Licensing Act 2003 • Home Office – most provisions came into force 6 April 2017 • Save for Cumulative Impact Assessments and Late Night Levy reforms – await Lord Select Committee Report

CUMULATIVE IMPACT ASSESSMENTS • CIP’s in s. 182 Guidance (Ch. 13, March 2015) • Judicial approval of CIP’s: • Pre-LA 2003: Westminster CC v Chorion Plc [2002] EWHC 1104 (Scott Baker J, Admin Crt) • Post-LA 2003: R (JD Wetherspoon Plc) v Guildford BC [2006] EWHC 815 (Beatson J, Admin Crt)

CUMULATIVE IMPACT ASSESSMENTS • Section 141 of Policing and Crime Act 2017 • Amends s 5 LA 03 (“Statement of Licensing Policy”) • Inserts new s 5 A (“Cumulative Impact Assessments”) into LA 2003

CUMULATIVE IMPACT ASSESSMENT (“CIA”) • s. 5 A(1): A licensing authority may publish a document (“a cumulative impact assessment”) stating that the licensing authority considers that the number of relevant authorisations in respect of premises in one or more parts of its area described in the assessment is such that it is likely that it would be inconsistent with the authority’s duty [to promote the licensing objectives] to grant any further relevant authorisations [i. e. premises licences or club premises certificates] in respect of premises in that part or those parts.

CUMULATIVE IMPACT ASSESSMENTS • A cumulative impact assessment must set out the evidence for the authority’s opinion as set out in the assessment. • In determining or revising its statement of licensing policy, a licensing authority must have regard to any cumulative impact assessments.

CUMULATIVE IMPACT ASSESSMENTS • A CIA may relate to all relevant authorisations or only to relevant authorisations of a kind described in the assessment (e. g. only alcohol, or LNR or after certain time etc) • Before publishing a CIA the licensing authority must consult.

CUMULATIVE IMPACT ASSESSMENTS • If LA publishes a CIA it must, following consultation, consider whether it remains of the opinion stated in the assessment - before end of 3 year period following publication or revision of CIA. • If no longer of opinion CIA required – must publish statement to that effect and not consider CIA • If CIA still required – must set out evidence to justify

CUMULATIVE IMPACT ASSESSMENTS • Brigid Simmonds of BBPA (26. 9. 16): “The changes to Cumulative Impact Policies to put them on a Statutory footing should only be justified by evidence, and it is important that each application for a new licence, or variation of a licence, is considered on its own merit… We welcome the frequent review of policies based on evidence, and particularly where crime and disorder are decreasing, but it is important to note that CIPs were originally devised as a temporary policy whilst the underlying causes of any local issues were addressed – and they should be considered in this context. ”

LATE NIGHT LEVY • s. 142, Policing and Crime Act 2017 • Amends LNL legislation under Police Reform and Social Responsibility Act 2011 • Aims to give local authorities more flexibility in imposing LNL.

LATE NIGHT LEVY • Levy can apply to particular geographic area(s) (rather than the whole authority). • LNL can apply to late night refreshment premises (in addition to, not instead of, late night alcohol licences) • Different LNL hours may pertain to LNR and alcohol premises.

LATE NIGHT LEVY • Police and Crime Commissioners may request LNL consultation – LA must publish response and reasons • LA’s must publish information as to how it spends its levy amount.

LATE NIGHT LEVY • ALMR Chief Executive Kate Nicholls : “These amendments shift the legislation further away from the Government’s stance in its original guidance; that the late-night levy should only be a last-resort, when other options have been exhausted. These new measures would introduce a degree of transparency, but this sort of punitive measure could quickly become the first port of call for local authorities… Allowing the levy to be restricted geographically and giving PCCs the power to request a consultation could potentially make it much easier for a council to introduce a levy. The ALMR has consistently opposed the introduction of a blanket tax on businesses and we continue to urge councils to explore partnership schemes before considering the levy. ”

SUMMARY REVIEWS • 113 valid police applications for summary review • Interim steps taken in 91% (103) of cases: • • • 62% (64) –suspension of premises licence 38% (39) - conditions added/modified 21% (22) – operating hours changed 17% (18) – DPS removed 14% (14) - licensable activity restricted/excluded Home Office (year to 31. 3. 16)

SUMMARY REVIEWS • Procedures significantly amended by s. 137, Policing and Crime Act 2017 • Ambiguity on longevity of interim steps pending appeal put beyond doubt. • At full review hearing licensing authority can withdraw or modify interim steps to have effect pending appeal.

SUMMARY REVIEWS • Licence holder and police have new right to appeal interim steps (made at full review hearing) to magistrates’ court within 28 days. • Repeated challenges to original interim steps only permitted if “material change of circumstances”. • What if no extant interim steps at time of full review?

PERSONAL LICENCES

PERSONAL LICENCES • Currently personal licence may be suspended for up to 6 months or forfeited only by a court on conviction of a “relevant offence” (i. e. listed in Schedule 4 of LA 03). • Policing and Crime Act 2017, s 138 gives similar powers to licensing authority that granted personal licence

DEFINITION OF ALCOHOL

DEFINITION OF ALCOHOL • S. 191 of the Licensing Act 2003 defines alcohol as: “spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor (in any state)” • To make it clear that powdered alcohol and vaporised alcohol are to be regulated in same way as liquid alcohol. • See, s. 135 Policing and Crime Act 2017

S. 182 GUIDANCE & PARLIAMENT

S. 182 GUIDANCE & PARLIAMENT • Every revision to s. 182 must be laid before Parliament – subject to “negative resolution” procedure. • Home Office: “Costly and burdensome process” • No debates in Parliament on any of amendments to Guidance over 10 years.

S. 182 GUIDANCE & PARLIAMENT • Need for Parliamentary approval removed • See, Policing and Crime Act 2017, s. 140 • Updated guidance reflects amendments in Immigration Act 2016, Policing and Crime Act and incorporate guidance on summary reviews.

RELEVANT OFFENCES • Schedule 4 of LA 03 (personal licences) updated • See Policing and Crime Act 2017, s. 139

MODERN CRIME PREVENTION STRATEGY 2016 • To follow (? ): • “GRIP” - consultation on group review intervention power - enabling LA’s to consider licensing conditions of a group of premises to address problems in specific location. • Police civilian staff - to have powers of entry to enter and inspect licensed premises. (see also Policing and Crime Bill, Ch. 1, Part 3)

MODERN CRIME PREVENTION STRATEGY 2016 • Introducing “sobriety” as a court imposed community order to reduce alcohol-related offending (e. g. alcohol monitoring tag).

ALCOHOL WHOLESALER REGISTRATION SCHEME

ALCOHOL WHOLESALER REGISTRATION SCHEME • The Wholesaling of Controlled Liquor Regulations 2015 • Scheme introduced to tackle alcohol fraud – “white van man”

ALCOHOL WHOLESALER REGISTRATION SCHEME • If you sell alcohol to another business – need to register for the AWRS • From 1 April 2017 - if you buy alcohol from a UK wholesaler – need to check the seller has registered with HMRC and has an AWRS Unique Reference Number (online register)

ILLEGAL WORKERS & LICENSED PREMISES

ILLEGAL WORKERS • Reviews of Premises Licence under Licensing Act 2003 • S. 182 Guidance (para 11. 27): “There is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously… [These include: ] knowingly employing a person who is unlawfully in the UK or who cannot lawfully be employed as a result of a condition on that person’s leave to enter”

ILLEGAL WORKERS • [11. 28] “It is envisaged that licensing authorities, the police and other law enforcement agencies, which are responsible authorities, will use the review procedures effectively to deter such activities and crime. Where reviews arise and the licensing authority determines that the crime prevention objective is being undermined through the premises being used to further crimes, it is expected that revocation of the licence – even in the first instance – should be seriously considered. ”

ILLEGAL WORKERS • Impact of Immigration Act 2016 (Royal Assent 12. 5. 16) • James Brokenshire MP, Immigration Minister: “Rogue employers will feel the full force of Government machinery … undocumented Workers will face the prospect of a prison term”

ILLEGAL WORKERS • Offence of employing a worker “knowing or having reasonable cause to believe” he has no right to work in UK • Increase in max penalty from 2 to 5 years prison • Sliding scale of punishment if employer reports worker. • Offence now in force (from 12. 7. 2016 – SI 2016/6 -3)

ILLEGAL WORKERS • Significant amendments to Licensing Act 2003 • Inserts s. 192 A – defining “entitlement to work in the UK” • Secretary of State becomes a Responsible Authority

ILLEGAL WORKERS • Individual resident in UK may not apply for a Premises Licence unless entitled to work in UK • Premises Licence lapses if holder ceases to be entitled to work in UK

ILLEGAL WORKERS • Transfer applications: • If applicant resident in UK must be entitled to work in UK • Secretary of State must be notified and may object to transfer if exceptional circumstances and grant “prejudicial to the prevention of illegal working in licensed premises”

ILLEGAL WORKERS • Interim Authority notice – if resident in UK can only apply if entitled to work in UK & can be cancelled on intervention of Secretary of State

ILLEGAL WORKERS • Personal Licences: • Only grant if entitled to work • Cease to have effect if holder ceases to be entitled to work in UK • Relevant offence includes immigration offence and immigration penalty • Sec of State can object

ILLEGAL WORKERS • Illegal Working Closure Notices– if employing illegal workers • Issued by Immigration Officers – prohibits access to premises for up to 24 -48 hours (depending on rank of officer)

ILLEGAL WORKERS • Application to Magistrates’ Court for Illegal Working Compliance Order • Various sanctions available from requiring immigration checks to closure of premises for up to 12 months

ILLEGAL WORKERS • Due diligence (includes): 1. Obtain the person’s original documents; 2. Check them in the presence of the holder; and 3. Make and retain a clear copy, and make a record of the date of the check. 4. Take particular care over Student Visas (obtain proof of academic term and vacation dates)

ILLEGAL WORKERS • See: “An employer’s guide to acceptable right to work documents” (Home Office, May 2015) https: //www. gov. uk/government/uploads/system/uploads/attachment_data/file/441 957/employers_guide_to_acceptable_right_to_work_documents_v 5. pdf • See: “An employer’s guide to right to work checks” (Home Office, May 2015) https: //www. gov. uk/government/uploads/system/uploads/attachment_data/file/426 964/an_employers_guide_to_right_to_work_checks_may_2015_final. pdf

ILLEGAL WORKERS • East Lindsey District Council v Abu Hanif (trading as Zara’s restaurant and takeaway) [2016] EWHC 1265 • Chef employed: (i) without paperwork showing a right to work in UK (ii) Paid cash in hand (iii) Less than minimum wage (iv) Owner did not keep or maintain PAYE records (v) purported to deduct tax from Mr Miah's salary (vi) did not account to HMRC for the tax deducted.

ILLEGAL WORKERS • Licence revoked at review. • DJ allowed appeal to MC: • Only a civil penalty imposed – not prosecution • No evidence of crime of “knowingly employing” illegal worker. • Offence of not paying minimum wage – not “main basis” of LSC’s decision on review • Crime prevention objective “not engaged”

ILLEGAL WORKERS • Appeal on Case Stated by Council to High Court allowed. • Jay J: “The question was not whether the respondent had been found guilty of criminal offences before a relevant tribunal, but whether revocation of his licence was appropriate and proportionate in the light of the salient licensing objectives, namely the prevention of crime and disorder. This requires a much broader approach to the issue than the mere identification of criminal convictions. It is in part retrospective, in as much as antecedent facts will usually impact on the statutory question, but importantly the prevention of crime and disorder requires a prospective consideration of what is warranted in the public interest, having regard to the twin considerations of prevention and deterrence. ”

ILLEGAL WORKERS • In any event, crimes had been committed: • Tax evasion • Employment below minimum wage • Inference owner did knowingly employing illegal worker. • Jay J: “The respondent exploited a vulnerable individual from his community by acting in plain, albeit covert, breach of the criminal law. In my view his licence should be revoked.

PSYCHOACTIVE SUBSTANCES ACT 2016

PSYCHOACTIVE SUBSTANCES ACT 2016 • Designed to end trade in “legal highs”. • Offence to produce, import or supply “psychoactive substances”– but simple possession or consumption not criminalised. • Into force 26 May 2016

PSYCHOACTIVE SUBSTANCES ACT 2016 s. 2(2): “a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state” • Exempted “psychoactive substances” include…

PSYCHOACTIVE SUBSTANCES ACT 2016

PSYCHOACTIVE SUBSTANCES ACT 2016 • “Poppers” (amyl nitrate) remain lawful – “not psychoactive”

PSYCHOACTIVE SUBSTANCES ACT 2016 • “Poppers” (amyl nitrate) remain lawful – “not psychoactive”

FURTHER INFORMATION: JAMES RANKIN FRANCIS TAYLOR BUILDING INNER TEMPLE LONDON, EC 4 Y 7 BY TEL: 020 7353 8415 www. ftbchambers. co. uk James. rankin@ftbchambers. co. uk 67