Condition requiring compliance with “police-led initiatives” reversed on appeal

Mohammed Shabir (t/a "Lifestyle Express") v. Newcastle City Council, Newcastle Magistrates' Court (DJ Sarah Griffiths) 16/6/16

An odd one here.

In 2012, an off-licence in Byker, Newcastle upon Tyne, applied to modestly increase its (morning) opening hours so that they were in line with competing outlets. The Police put in a representation in opposition. As part of a deal with the Police so the representation would be withdrawn, the premises agreed to submit to various conditions. So far, so typical.

However. One of the conditions, condition 9, read as follows:

The Designated Premises Supervisor or other responsible person appointed by the Designated Premises Supervisor shall take part in Police led initiatives such as “Off Watch”, “Alcohol Watch”, “Safer Summer Streets” or similar as well as regularly attend any meetings organised by the Police in relation to these initiatives”.

In due course, the premises found that Police officers would arrive at the premises, and orally inform management of new "initiatives" with which they required compliance. Initiatives included things like labelling or not stocking certain brands (including the usual suspects of Lambrini and Frosty Jacks) and not stocking beers and ciders of over 5.6% ABV. None of the initiatives were reduced to writing. None had been consulted upon. None had been approved by the licensing authority.

The premises licence holder complained that different officers were telling him different (and contradictory) things, and that he alone in the locality was expected to comply with initiatives that his competitors ignored. He applied to vary his licence to remove condition 9. The Police objected.

The variation application came before the licensing authority in August 2014. It refused to delete condition 9, but redrafted it to read:

The designated premises supervisor, or other responsible person appointed by the designated premises supervisor, must participate in police-led initiatives in order to contribute to the action against alcohol-related crime and disorder and anti-social behaviour in the Chillingham Road and Shields Road Cumulative impact area.

The premises licence holder appealed to the magistrates court. In March 2015 District Judge Earl (as he then was) struck down the condition as being vague and uncertain. However, he found that:

... there is a lack of voluntary cooperation by the Appellant with the legitimate aims of the licensing committee and the police. Conditions should not be standardised and not all traders will work voluntarily with the authorities. Therefore some, like the Appellant need to be coaxed to do so by appropriate conditions. Whilst I accept that the removal of condition 9, would act against the legitimate concerns of the committee, in imposing it, I am of the view that the wording of the condition is not capable of being clearly understood and followed.

(my emphasis)

He remitted the matter back to the licensing committee for "debate" as to what the condition should provide, setting out “as a minimum” requirements that police-led initiatives be in writing, be consulted upon, be approved by the licensing committee, and have a published duration.

Six months later, the licensing authority put forward a new condition 9. The premises licence holder suggested a counter-proposal, but, in February of this year, the licensing authority, in a delegated decision, rejected nearly all of his suggestions, and imposed a final condition. There was no hearing before the licensing committee.

The premises licence holder appealed to the magistrates’ court once more. That appeal was heard on 16 June 2016 by District Judge Griffiths. I represented the premises licence holder.

The condition contended for by the licensing authority required the premises to be operated in accordance with police led initiatives (which had to be consulted upon, approved by the licensing authority, published and notified to the premises licence holder).

The premises licence holder put forward a competing condition whereby the DPS had to participate in initiatives (again, that were consulted upon, approved by the licensing authority, published and notified to him). The premises licence holder’s draft went on to define “participate” as accepting service of initiative documents, maintaining them on file, recording whether or not they were to be complied with, and attending meetings if meetings were part of the initiative.

So the premises licence holder’s draft left open the possibility that the DPS might choose not to comply with a future initiative, whereas the licensing authority’s contention was that all initiatives must be complied with by the premises, no matter what they said. The premises licence holder contended that when DJ Earl said it was appropriate for him to be “coaxed”, it did not mean that it was appropriate for him to be forced.

DJ Griffiths preferred the premises licence holder’s contention.

It is not hard to see why she came to that conclusion. No other premises in the locality has this condition. There were no “police-led initiatives” in force. No-one knew what future initiatives might say. How can it be appropriate, as at the date of the appeal (which is a rehearing, so that is the relevant date) to make it a condition that the premises comply with unknown future initiatives? How can it be appropriate that this premises may be forced to comply with a condition, say, not to stock alcohol over 5.6% ABV when, as was evidenced before the court, major national retailers (including one on the premises’ doorstep) were all selling such products, and could choose (as they had in the past) to ignore local initiatives? How can it be right that a condition could require compliance with the provisions of some other document, promulgated and finalised not by the licensing authority but by the Police, against the adoption of which the premises licence holder has no right of appeal?

This does seem to have been an example of a responsible authority asking, as a quid pro quo for abandoning an objection, for a condition that no properly directed licensing committee would ever have granted in the first place. It is of course easier and more certain for an applicant to accept a deal of this nature than take the point of its plain illegality and risk not getting his variation in front of a committee. But once on the licence, conditions of this nature are hard to get rid of.

The District Judge derived great assistance from the checklist in para 1.16 of the s.182 Guidance as to the drafting of conditions So, amongst other things, they:

• must be appropriate for the promotion of the licensing objectives;

• must be precise and enforceable;

• must be unambiguous and clear in what they intend to achieve;

• must be tailored to the individual type, location and characteristics of the premises concerned;

• should be proportionate, justifiable and be capable of being met.

She further placed weight on the appellant’s complaint that the condition contended for by the licensing authority could result in a scenario where a police-led initiative was promoted to deal with problems caused by other premises (but not his), and yet he would be the only premises conditioned to comply with an initiative. The District Judge did not think it was satisfactory that the premises licence holder’s remedy at the point would be to apply to vary the condition to add an exemption (the solution suggested in submissions made on behalf of the licensing authority).

Expressing disappointment that matter had not gone before the licensing authority’s licensing committee for debate, as ordered by DJ Earl, but tasked with making the decision, she - in essence - found that “coaxed” did not mean "forced", which in view of the unknown quantity of what a “police-led initiative” might be, was “quite frankly, unfair”. Subject to some minor amendments, the draft proposed by the premises licence holder was preferable.

This is a pragmatic and sensible end to a long drawn-out process that - given the absence of any written police-led initiative - was serving the public no practical purpose.

Conditions that side-step the statutory scheme for reviews might appear attractive to responsible authorities such as the Police, particularly if they can be obtained by way of a concession from an applicant who might be interested in the short term benefit of the variation than the long-term effect. However, the reality is that they are fraught with difficulty and the risk of unintended consequences applying.