Licence reviews: Be aware of activity outside your pub

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Duke of York: case seems to be consistent with an increased willingness by licensing authorities to use the licensing regime to control non-licensable activities
Duke of York: case seems to be consistent with an increased willingness by licensing authorities to use the licensing regime to control non-licensable activities
It is hard to escape Boris Johnson at the moment. Following hard on the heels of the great success of the London Olympics, he is currently riding the wave of popular opinion. But for those in the licensed trade, especially in London, that popularity may not extend to Boris’s Metropolitan police commissioner, Bernard Hogan-Howe.

Speaking to the first meeting of the London Mayor’s Office for Policing and Crime’s ‘challenge board’ at the beginning of October, Mr Hogan-Howe said: “If you have many licences where lots of people wander from pub to pub, they congregate outside, that can become a problem.”

He referred to one of the “really big areas we’ve got to get on top of” as being the “density of clubs and pubs”. He went on to say: “For me, a zero tolerance policy in that area is good. ‘You’ve had your warning, that’s it, you haven’t got a licence’ is, for me, one of the best drivers for improving performance around licensing, where you actually keep the pressure on the licensee.

“This is a privilege to make money, that you hold people’s health and welfare in your hands. If you get it wrong, both the health service and the police will end up picking up the pieces, as will the victims.”
Consider his words in the context of a recent case. A colleague of mine ran a bar in central London between 2001 and 2009. His bar was situated in trendy Noho, the area north of Oxford Street.

In walking around the area he would regularly cast a jealous eye over a nearby premises, the Duke of York, on Charlotte Street.

Set on a U-shaped bend in the road, the pavements outside the Duke of York, especially in the summer, would be heaving with customers. Frequently there would be twice or three times the number of people outside the premises as inside.
In recent weeks, a review has been launched against the premises alleging nuisance and safety concerns caused by these customers gathering outside.

Although the review papers cite evidence from local residents, it was not commenced by them. In one of the first recorded occasions in the UK, the review was brought by the licensing authority itself under powers introduced in April 2012.

There is no doubt that Westminster Council was acting entirely within its powers by bringing the review, and, indeed, is under a duty to ensure that the licensing objectives are upheld.

But the Duke of York review does raise interesting questions. Why did the residents not bring the review themselves? How does the licensing authority choose which cases to support? Could it be open to the accusation of cherry picking?

An equally interesting question is whether the Duke of York review shows a new appetite by licensing authorities to use the licensing regime to bring operators to account for the activities of their customers, in particular criminal activities that occur outside their premises.

You might question why the operators of the Duke of York should be responsible for antisocial behaviour or noise nuisance that occur beyond the boundary of their licensed premises. However, it is well established that operators can be held responsible for such activities, if there is a direct causal connection between licensable activities and that behaviour.
While the timing of the review by the Westminster licensing authority may be entirely coincidental, it should be seen in the context of the comments made by commissioner Hogan-Howe.

Operators are only too aware of the current political background to licensing enforcement in the UK, with the impending introduction of the late-night levy and early morning restriction orders.

The Duke of York case seems to be consistent with an increased willingness by licensing authorities to use the licensing regime to control non-licensable activities.

The lesson for operators is clear — you don’t just have to get your house in order but to some degree also what goes on outside your house! You are potentially responsible for the activities of your customers beyond your licensed premises and, even if local residents do not have the appetite to take action, your local licensing authority may decide to do so — and remember, it will be the one judging the merits of a review brought by itself.

Commissioner Hogan-Howe’s words should act as a warning to the pub trade. In the current political environment your local licensing authority may be less forgiving of noise, nuisance and criminality beyond your premises. Even if Boris is a regular.

Related topics: Licensing law

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