Legal advice: Is your pub at risk of Community Protection Orders - the 'new ASBOs'?

07-Nov-2014 - Last updated on 07-Nov-2014 at 14:33 GMT

CPOs: Is your pub at risk?

One way or another there has been a lot of news lately. It is that time of year when the clocks have changed, the nights are darker and the Christmas spirit is not yet engaged. You would be forgiven if you had not heard of a new piece of legislation which “burst” on to the scene on 20 October 2014.

The Anti-Social Behaviour, Crime & Policing Act 2014 is another Government initiative to tackle antisocial behaviour in the community. Community Protection Orders (CPO) will replace the Anti-Social Behaviour Order or ASBO as it is known and can be issued not only to individuals but potentially also to ‘bodies’.

A well-known supermarket chain is allegedly in danger of receiving a CPO in Cambridge because of litter.

A reminder therefore to all licensed premises that allow smoking outside their premises on the public highway — ensure that smoking litter is discarded into appropriate receptacles and not on the ground because the issue of a notice to clean up is only the first step.

Failure to comply (that effectively means your customers containing their litter) can attract a fine of up to £20,000 if convicted in the magistrates’ court. The legislation has also copied bits out of the Cleaner Neighbourhoods & Environmental Act 2005 by allowing a local authority to clean up the litter your customers generate and send you a bill. Many readers will have heard of a ‘Section 27’ (of the Violent Crime Reduction Act 2006).

This enables police officers to get rid of persons who could potentially “kick off” in the high street by ordering them to leave the locality. In some cases, they have to remain outside the locality for a period of up to 48 hours determined by the issuing police officer.

Section 37s

Many police officers have confirmed Section 27 is a very useful tool and the only drawback is that the individual to whom it is issued has to understand what is going on — in other words not to be too intoxicated. In the new act, Section 27s have been replaced by Section 37s.

However, the trigger for their issue is that the behaviour of the individual is likely to “harass, alarm, and/or distress members of the public” rather than “represent a risk of disorder”. I have some doubt whether there is any great difference between Section 27s and Section 37s. However, Section 27s are now consigned to history. Closure notices have a very interesting history in relation to licensed premises.

I remember the early days of Section 19 notices (of the Criminal Justice & Police Act 2001) when enforcement officers used them as a blunt tool (unlawfully as it transpired) to close premises immediately, under threat of arrest. Other legislation also contains provision to issue premises with closure notices and, in particular, in respect of the use of Class A drugs (the Anti-Social Behaviour Act 2003) and, in the same act, a section covers the issue of immediate closure notices for noisy premises.

Triggers

Surprisingly then, the Anti-Social Behaviour Crime & Policing Act 2014 has sections that almost mirror those pieces of legislation currently in force with respect to closure notices and closure orders. The Government insists that the reforms and the encapsulation of a number of acts into one is designed to put victims at the heart of the response to antisocial behaviour, while also giving “professionals the flexibility they need to deal with any given situation”.

The guidance to the act identifies the ‘community trigger’ as a new measure designed to give victims and communities a say in the way antisocial behaviour is dealt with. While much vaunted by the Government, this trigger looks at the frequency of complaints, the harm that the antisocial behaviour generates and the response by the authority.

This is hardly different to existing standard enforcement protocols for licensed premises — many licensees may think that local residents are perfectly capable of filling in a review application form without needing the right to ask the authorities to do it for them.

Jaded

I am, therefore, a little jaded by the ‘new legislation’, which has plagiarised existing statutes to provide one definitive act, albeit leaving some existing enforcement provisions in place. The act may assist in the tackling of wider antisocial behaviour, but for premise licence holders its specific provisions have been available to enforcement authorities for a number of years and have, on the whole, worked to the benefit of the community and those serving the community.

Time will tell as to the success or otherwise of these ‘new’ provisions, but I hope their reincarnation will not lead to an increase in formal enforcement action.