Super strength?

Police photo iStockphoto standard 146x219Paddy Whur considers the importance of the Superintendent's Certificate when it comes to summary reviews of premises licences.

In the last week I have undertaken two appeals in different Magistrates’ Courts arising out of summary reviews of premises licences when both licences were revoked at the final hearing.

Among other things these two appeals have focused heavily on the Superintendent’s Certificate and the information given to the Superintendent at the time of his or her signing of the certificate.

Under Section 53 A of the Licensing Act 2003 the chief officer of police for the area in which the premises are situated may apply to the relevant Licensing Authority for an expedited licence review if a senior member of the force has issued a certificate that in his or her opinion a licensed premises is associated with serious crime or serious disorder or both.

A senior member of the force is categorised as a superintendent or above. The certificate is a formal note which identifies the licensed premises and includes a signed statement by a senior officer that he or she believes the premises is associated with serious crime, serious disorder or both.

Serious crime is defined by Section 81 (2) and (3) (a) and (b) of the Regulation of Investigatory Powers Act 2000. Those tests are that the conduct:

(a) constitutes an offence for which a person who is 21 years of age or over with no previous convictions could reasonably be expected to be sentenced to imprisonment for 3 years or more; and

(b) involves the use of violence, results in substantial financial gain or is by a large number of persons in pursuit of a common purpose.

With regards to serious disorder there is no statutory definitive list of behaviours that constitutes serious disorder, and the matter is one for judgment by the local police. The phrase should be given its plain ordinary meaning as is the case under Section 12 of the Public Order Act 1986.

The issue, therefore, is what information is being given to the Superintendent for him or her to sign a certificate to start the instigation of a summary review of the specified premises. There is no mention of any of this in the statutory Section 182 Guidance Document. However, the Home Office have issued a “Section 53 Licensing Act 2003” – Summary Review Guidance Document which can be found on the Home Office website.

The Home Office are at pains in the introduction to stress that the guidance has no statutory basis but is intended to assist police forces and licensing authorities when considering using the procedures.

For a long time I have promoted the argument that summary reviews should be contained in the Section 182 Guidance Document and one can only speculate why the Home Office have not continued to include guidance on the summary review in the statutory document. In previous DCMS incarnations of the Section 182 Guidance there was advice in relation to summary reviews, however, this has now been taken out of the Section 182 Guidance since the Home Office took over as the government department with control over licensing legislation.

One might hold the view that they are nervous about the amount of litigation on interim steps in summary reviews and have avoided giving any guidance. This continuing saga will be the subject of my next article.

Enlightened police forces, such as the Dorset Constabulary, have instigated tactical advice training on the Licensing Act which is added to the tactical advice training on public order issues.

This means that Superintendents are trained on what to probe for to ensure that they are signing a certificate in the right cases.

It was obvious in the 2 cases that I was involved in this week that the officers had not been trained to the same level in the process of the signing of the certificate.

Whilst it has no statutory force the Home Office guidance on summary reviews deals with what a senior officer should be looking for, at paragraph 2.4.

Paragraph 2.4 states as follows:

In deciding whether to sign a certificate, the senior officer will want to consider the following (as applicable):

  • The track record of the licensed premises concerned and whether the police have previously had cause to give advice about serious criminal or disorderly conduct (or the likelihood of such conduct) attributable to activities taking place on the premises – it is not expected that this power will be used as a first response to a problem.
  • The nature of the likely crime and/or disorder – is the potential incident sufficiently serious to warrant using the power?
  • Should an alternative power be deployed? Is the incident sufficiently serious to warrant use of the powers in Section 161 to 165 of the 2003 Act to close the premises? Or could the police trigger a standard licence review to address the problem? Alternatively, could expedited reviews be used in conjunction with other powers (for example, modifying licence conditions following the use of the closure power).
  • What added value will use of the expedited process bring? How would any interim steps that the Licensing Authority might take to effectively address the problem?

It is very clear, therefore, that the Superintendent should carry out significant enquiries into what his licensing officer is telling him to ensure that the summary review process is the correct course of action.

If premises are to be closed on interim steps, have their licences revoked and then go to appeal in front of a District Judge then there is more than a good chance that the information provided to the superintendent will be carefully assessed by the premises licence holder’s representative and these issues probed.

Paragraph 2.5 of the guidance document goes on to say “it is recommended that these points are addressed in the chief officer’s application to the licensing authority. In particular, it is important to explain why other powers or actions are not considered to be appropriate. It is up to the police to decide whether to include this information in the certificate or in section 4 of the application for summary review. The police will also have an opportunity later to make representations in relation to the full review.”

It is also critically important that any information relied upon at the stage of signing the certificate is reviewed moving forward.

There is a duty on behalf of the police to ensure that they present an accurate and up to date position both at the interim steps hearing and at any final review. This is also an important point for the licensing authority to assess if the matter then moves on to an appeal.

If, for example, the trigger offence has been down graded or even fallen away as a criminal matter, this is an important consideration for the licensing authority to have in determining whether to defend an appeal against its own decision and a re-assessment should take place during this process.

Clearly there is an awful lot to consider in these matters and it perhaps reinforces the need for training to be undertaken to ensure that each step of the process is conducted correctly.

Paddy Whur is a partner at Woods Whur. He can be contacted on 07738 170137 or This email address is being protected from spambots. You need JavaScript enabled to view it..