Legal expert Peter Coulson believes police action is wrong

Last week this paper headlined a situation where police were ordering the immediate closure of pubs when no personal licence holder was present. The loss and inconvenience to the licensees was considerable. The actions were based, in my view, on a complete misunderstanding of the law.

It is a great pity that the police in certain areas are either ignorant of, or deliberately ignoring, not only the Licensing Act itself but a number of very helpful guidance notes and background information that could have helped them avoid this unfor-tunate reaction.

There are two elements to this scenario. The first is whether the actual law is being broken when sales are made when a personal licence holder is not physically present. The second is whether the police have power to close the premises when they find this situation exists.

Unfortunately, my view is that they are wrong on both counts. Most importantly, there is nothing in the Licensing Act or any other statute which allows them to force the closure of licensed premises unless there are clear legal reasons for them to do so.

Closure powers exist for the police under the Licensing Act 2003, as I explained last week. But they can only be exercised in specific circumstances, involving disorder or nuisance. The police do not have an absolute right to order the closure of premises just because they think the law is being broken.

In any event, the only possible offence taking place in these circumstances is that the holder of the licence is carrying on licenseable activities 'otherwise than in accordance with an authorisation'. This is highly debatable but in any event does not justify the closure of the premises. If the operator had no authorisation, that might be a good reason.

But a properly-managed pub, with the DPS or personal licence holder absent, is in exactly the same position as a pre-November pub where the licensee has delegated his responsibility to competent bar staff because he is absent. The mere fact of absence itself is not an offence under the licensing laws.

This is a disgraceful episode, principally because it has nothing at all to do with badly run pubs. It is an exercise in macho policing, putting innocent licensees to great inconvenience and expense on an hypothetical and already discounted interpretation of the Licensing Act.

The very experienced lawyers within the police force in South Yorkshire should have examined the situation and reached a clear decision prior to action, and then made it clear what they intended to do. At that stage, the legal position could have been explained to them, and they may have taken a very different view.

Remember that this particular phrase has been on the statute book since the middle of 2003. It is not new. There has been plenty of time for great legal minds to mull over what is meant by 'authorising' a sale. Even that concept is not new. The DCMS has sent out a letter explaining how it views the idea of delegated responsibility in these situations. For the police to embark on what amounts to an ambush of innocent licensees deserves, at least, severe criticism and, at most, a claim for damages.

They cannot hide behind any form of indemnity in these circumstances. They have had plenty of time to consider what they law actually says. There is no inbuilt protection when the police take action which is both unauthorised and damaging to individual traders.

They should pay the price for it, if those affected are minded to go to court on the issue.