Draconian policing needs investigation
Last week's revelations from Merseyside about two pubs being closed down on a Friday night after just one failed sting operation provoked an outcry among licensees, which for once was entirely justified.
In my view, the police have misread the implications of the amended section 19 of the Criminal Justice & Police Act 2001, or have been wrongly advised. The closure notice referred to in that section by no means provides a power of instant closure - quite the opposite. It requires the police to gain the approval of a magistrate before proceeding.
The problem stems from a completely un-debated amendment to this Act, which was buried away in the back end of Schedule 6 of the Licensing Act 2003. As far as I can recall, there was a rush towards the end of the progress of the bill, and the Lords were making a fuss about small-scale live music, so there was not time to look at the implications of this subtle change. So it is really legislation by the back door.
Originally, section 19 applied to the closure of unlicensed premises, which meant at that time premises used for the sale of alcohol without a licence. This is borne out by the wording of this and the subsequent sections. It was clearly never intended to apply to licensed premises.
There is provision in the section for the closure notice to be served on other occupiers, if they might be affected by a subsequent closure order being made for the premises.
The issuing of a closure notice must be done in a specified way and must state the effects of section 20 (which is the actual closure order) and the steps that need to be taken to rectify the situation (ie, stopping the illegal sale of alcohol). Then, not earlier than seven days after issuing the notice, the police may apply to a justice of the peace for him to make the actual closure order that was threatened unless the remedial steps were taken.
What the Licensing Act amendment did was to change the words "unlicensed sale" to "unauthorised sale" - a subtle alteration but one that created a whole new scenario. An unauthorised sale is one that is not made in accordance with the strict terms of a premises licence.
So these draconian powers have been switched from the serious matter of selling without a licence - under the old law one of the most highly-punished offences - to apparently any minor diversion from the terms of the licence itself.
Even if failing a test purchase could technically be seen as breaching the terms and conditions of the licence, which is debatable, to use it as an excuse for an instant closure by a police constable is completely disproportionate and totally unfair on the licensee, who loses a considerable profit at a busy time of the week.
The notice, which I have seen, that was handed to the licensee or a member of her staff does not even comply with the terms of the section. It gives no indication of the legal process be carried out under section 20, carries no warning of the results of non-compliance and is signed by a police constable only.
The correct procedure in the case of a successful test purchase is either a fixed-penalty notice to the actual seller or a warning of intended prosecution. This is not an alternative procedure and should never be used as such.
To call this heavy-handed policing is an understatement. It should be thoroughly investigated, so as to find out whether this was opportunism or just a result of a misunderstanding of the law at a junior level. I rather suspect the former, but until there is some explanation I suppose I ought to be charitable. The licensees who have lost up to two days' takings may not take the same line.
