Paddy Whur looks at the consequences of a failure to comply with the conditions on a premises licence.
I have had a rush of non-compliance with conditions cases recently which can have very serious ramifications. If you are an operator and have a condition(s) on your licence which you feel is no longer relevant, it is overly restrictive and therefore disproportionate/inappropriate to promote the licensing objectives – you can’t just arbitrarily decide not to comply with it. Some of these non-compliance issues have led to interviews under caution and there is then potential prosecutions to come.
All conditions on premises licences have to be complied with. Non-compliance can have significant consequences. It can lead to you having a poor relationship with the Responsible Authorities, could lead to a review of your premises licence and/or lead to a prosecution under S136 of the Licensing Act 2003. I have three cases on at the moment where we are looking to have licences extended and relatively minor non-compliance with conditions could frustrate the applications being viewed favourably. I have also had a couple of reviews where non-compliance with conditions has been added in to bolster the application for review.
The most serious position is that of a potential prosecution.
Unauthorised licensable activities
(1) A person commits an offence if—
(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or
(b) he knowingly allows a licensable activity to be so carried on.
The potential sanctions are significant, being a term of imprisonment not exceeding 6 months and/or an unlimited fine.
Put simply, do not take the risk. If there is a condition on your licence you MUST comply with it. If you want to have the condition removed then speak to the licensing officer from the Authority and the relevant Responsible Authority officer. If it is a crime and disorder condition then speak to the police, if it is a public nuisance condition then speak to the environmental protection officer. The condition may be old and no longer relevant, if so the authorities may be amenable to the condition being removed by the simplified process of a minor variation.
You may have to go to a full variation application in which case we can prepare fully to explain to the licensing committee why the condition should be removed from the licence, you cant just not comply and run the risk of enforcement.
The S82 Guidance document issued by the Home office is very helpful when looking at conditions.
This link takes you to the current edition:
The most relevant paragraphs are:
Licence conditions – general principles
Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as“must”, “shall” and “will” is encouraged. Licence conditions:
- 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;
- should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
- must be tailored to the individual type, location and characteristics of the premises and events concerned;
- should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
- should not replicate offences set out in the 2003 Act or other legislation;
- should be proportionate, justifiable and be capable of being met;
- cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and
- should be written in a prescriptive format.
If you have old conditions which do not follow the guidance it is worthwhile bringing it to our attention to see if it is a condition which should be removed or amended. Please do not just think that it isn’t relevant anymore therefore I wont comply with it. Act first and look to remove rather than run the risk of prosecution.