Legal: The danger of social media in pub licence reviews

We were recently involved in a case where a licence review was launched against a nightclub by the police, following allegations of crime and disorder.

During the representations period (before the hearing), the officer bringing the review chose to write a blog which made reference to the review.

The premises were not mentioned by name, but as there were apparently no other reviews ongoing at that time in the licensing authority area, it was not difficult to deduce the identity of the premises.

In the blog, after mentioning the review, the officer stated that crime and disorder within that area would not be tolerated. It could be argued that this is simply a statement of fact, and that the officer is perfectly entitled to express that opinion.

The obvious problem, however, is that it could be interpreted as a statement that the premises are ‘guilty’ before a committee has had an opportunity to weigh up the evidence before it.
In another recent case, the police used a local paper (and its online edition) to comment on their objection to an application for a new premises licence, in respect of premises which had previously lost its licence on review.

Anyone reading that article (such as a licensing committee member or a neighbour considering lodging an objection) would have only received one side of the story.

No doubt the police would say that they are simply putting forward their point of view and that it is incumbent on the newspaper to give both sides of the story. However, this does not always appear to be the case, and it seems that it is the operator who normally has less of a voice.

But there are also risks for operators that can be of their own making. Imagine a scenario where an operator is involved in a long-running battle with a neighbour in relation to noise, which results in the neighbour bringing a review of the premises.

Prior to the hearing taking place, they make  derogatory comments about the neighbour on the operator’s Facebook page. It is entirely possible that those comments could be used against the operator at the review hearing.

There are obvious evidential implications of posting comments online. It is for the licensing committee to make up its mind on the facts of an application based on the information in front of it on the day of the hearing.

They are under a duty to be impartial. There is a clear concern that members of the committee could be influenced by comments made by the parties prior to the hearing.

Will the situation start to mirror America, where evidential battles are fought out in the media outside the courtroom in a bid to influence public opinion?
Would it not be better that licensing applications — and particularly reviews —­ mirror criminal trials, in that the parties are not at liberty to comment on the case until the outcome of the hearing?

This would allow for an even playing field for both sides without the risk of the committee being influenced by outside factors. The police or CPS wouldn’t dream of prejudicing a prosecution case by commenting on it prior to a hearing — so why should they feel free to do so in relation to licensing matters?

In licensing applications there is now a new online battlefield for the hearts and minds of all interested parties. If the responsible authorities —and in particular the police — are now intent on using social media to trumpet their case in advance of hearings, operators may need to prepare their own online strategy. This might include publishing results of polls in support of an application, or getting supporters to blog or tweet their support.

So my advice is that if you make a licence application or are the subject of a review, keep a close eye on the online coverage of the case, especially during the representations period.

If anything prejudicial is written, this should be brought to the attention of the licensing authority in advance of the hearing. In short, make sure your voice is heard in local media and that you correct any inaccuracies in the coverage of any licensing application.