Legal advice: What's in a review?

The phoney war has now ended. After an initial lull at the end of the transition process, councillors are once again spending their days listening to tales of banging house music, and magistrates to stories of binge-drinking Britain.

• Operators of troublesome premises face the threat of either:
• Their premises licence being reviewed by a statutory body or interested party or
• A prosecution being brought by the licensing authority.

What do I do if an application is made to review my premises licence?

The first thing you should consider doing is instructing a solicitor who specialises in licensing. This is not a transparent attempt to drum up work, but merely a recognition of the potentially serious impact of an unfavourable review hearing. As many of you are no doubt aware, at a review hearing the committee not only has the power to impose further conditions on your premises licence, but it can also exclude a licensable activity (such as the provision of live music), suspend the licence for up to three months or even revoke your premises licence. When you consider the potential loss of revenue from your premises closing, even for a short amount of time, you may conclude that legal fees are a necessary expense.

Speak to whoever has submitted the grounds for the review and any people or bodies who have made representations. Be reasonable and understanding. If you can agree voluntarily to amend your premises licence, your local council may agree to deal with the matter administratively, which avoids the uncertainty of a hearing.

Look closely at what has caused the review to be submitted in the first place. Local residents and statutory bodies are using review applications to concentrate the minds of operators. If the matter goes to a hearing, it is vital to show that you have looked closely at the operation of the premises and put procedures in place which will prevent similar problems arising in the future. Such steps could include preparing a training manual, installing double glazing/lobby doors or changing the beer delivery/refuse collection times.

What happens if a review decision is unfavourable?

The answer is easy. Appeal, appeal, appeal! A committee's decision does not come into effect until an appeal against the decision is withdrawn or you are unsuccessful. Furthermore, an appeal hearing is arguably de novo - a completely new hearing at which new evidence can be admitted. Therefore, you have the opportunity to "put your house in order" and to submit evidence to show that you are upholding the licensing objectives.

My major caveat relates to costs. An appeal hearing is before magistrates and they can order any costs they think fit. If your appeal is unsuccessful, you could be ordered to pay the council's (and, potentially, the interested parties') costs. Therefore, if the impact of the committee's decision against you on review is slight, or your appeal arguments weak, you might want to think twice.

On what grounds can I be prosecuted?

Offences under the Licensing Act 2003 are wide ranging. They include, but are not limited to, undertaking unauthorised licensable activities, selling (or attempting to sell) alcohol to someone who is drunk, making a false statement in a licensing application and keeping smuggled goods on the premises.

How do I defend a prosecution?

As with a review, a prosecution should be treated seriously. It is advisable to instruct a specialist solicitor as soon as possible. Different offences have different defences and potential penalties. As with licensing under the old system, prosecutions are heard in a magistrates' court. They are more formal than reviews and your solicitor should advise you on the procedural formalities. The complexity surrounding prosecutions is not necessarily a hindrance. With rules governing service of documentation and time constraints, some prosecutions fail on technical grounds.

What determines whether I am prosecuted or reviewed?

Although it is early days in the life of the Licensing Act 2003, it would appear that reviews are proving a more popular recourse than prosecutions. Pursuing a prosecution is technically tricky and long-winded. A review is seen as having a greater chance of success by the powers, and there is no risk of a costs award being made - for example, if the police unsuccessfully seek to review a pub, they will not be made to pay the publican's legal fees.

The relationship between the licensing industry, statutory bodies and the public is still in a state of flux. Some prosecutions and reviews are unavoidable. However, careful management and a willingness to listen can ensure that these are kept to a minimum.