Legal advice: Special hours certificates

A special hours certificate does not give a licensed premises the same status as a late-night venue.

By David Clifton of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

There was a time when it was thought that licensing reform would bring to an end the bitter battles waged between nightclub and pub operators over special hours certificates. But the final draft of the statutory guidance under section 182 of the Licensing Act 2003 presently before Parliament for approval still holds potential for future battles.

Tucked away on page 140, paragraph 13.17 of the guidance - dealing with conversion of existing licences to premises licences during the forthcoming transitional period - says: "Where a particular permission (for example, a special hours certificate) is subject to certain requirements of existing law (for example, the provision of substantial refreshment and music and dancing), these restrictions will need to be reflected in the newly converted licence".

Interestingly, it does not include the words "to which the sale of intoxicating liquor is ancillary" after "… music and dancing", which might in itself give rise to debate as to the precise form of condition to be imposed on a converted premises licence.

Let us assume for now that, unless they successfully apply for variation during the transitional period, licensed premises currently holding special hours certificates find themselves saddled with a condition on their new premises licences requiring that:

• the premises are structurally adapted and used for the purpose of providing music and dancing and substantial refreshment, to which the sale of intoxicating liquor is ancillary
• in such circumstances, case law on special hours certificates will remain relevant under the new legislation.

I have previously written on this site about the judgments in the 1998 case of Shipley and the 2001 case of Schofield.

Now we have the 2004 case of Norwich Crown Court v Luminar Leisure which you will have read about on thePublican.com. Wetherspoon operates a Lloyds No 1 on the Riverside development in Norwich (pictured)​. Luminar also has licensed premises in Norwich. Luminar is no stranger to the section 77 battlefield.

It was accepted by the courts that Lloyds No 1 was structurally adapted for the provision of music and dancing and substantial refreshment. It was found that:

• the taking of meals, often accompanied by intoxicating liquor, was the predominant use of the premises during the day, a substantial use until 8pm, a significant use until 9pm and little more than a token use after 9pm
• the vast majority of customers after 8pm were drinkers
• the dancefloor was small in relation to the drinking area
• there was much open space in the premises available for occupation by standing drinkers.

Norwich Crown Court had allowed an appeal by Wetherspoon against the refusal by the local licensing justices of a special hours certificate until midnight, notwithstanding a finding that there would be very little eating and not much dancing during the period between 11pm and midnight.

Subsequently both the High Court and (on April 7) the Court of Appeal disagreed with the Crown Court's decision. Steve Thomas of Luminar hailed the Court of Appeal's judgment as "closing a loophole". But, in my view, it does little more than confirm the following principles established by the previous case law:

• "Use" and "intended use" (in section 77 of the Licensing Act 1964) refer to use by the licensee, not use by the premises' customers
• the fact that some customers are only interested in buying drink in the hours permitted by a special hours certificate does not of itself mean that the certificate is improper or unlawful. Nor does the fact that all three facilities - music, dancing, substantial refreshment - are not all available at the same time
• the requirement that the sale of intoxicating liquor be ancillary to the stated purposes has to be looked at by reference to the whole day's licensing hours (because the certificate replaces the ordinary on-licence as the authority for the sale of liquor)
• the power to grant a special hours certificate is not to be used to licence a "late-night pub".

A clarification on the draft Gambling Bill​

Also on April 7 the Parliamentary pre-legislative scrutiny committee published its report on the draft Gambling Bill, an amended version of which may be laid before parliament later this year.

Some press articles commenting on the threat to pubs mistakenly assumed that casinos cannot currently serve alcohol on gaming floors or provide live entertainment. They can, and have been able to since the summer of 2002.