The Home Office and summary reviews

Alcohol shutterstock 190326683 146x219Has the Home Office abdicated responsibility on giving guidance on summary/expedited reviews? asks Paddy Whur.

One of the most fertile areas for litigation through the Magistrates’ Courts, High Courts and potentially the Court of Appeal is summary/expedited reviews. They are a power brought in to the Licensing Act through the Violent Crime Reduction Act, to deal with serious crime and disorder. They can only be brought by the Police and by their very nature are going to be the most contentious hearings, where the immediate suspension/revocation of the premises licence will be a live issue….but the s. 182 guidance document is silent on them.

Many years ago there used to be mention of them in the guidance document….but no more. This is really not right. The Home Office are looking at a new revised s. 182 guidance and I understand the Association of Licensed Multiple Retailers are lobbying for a proper redraft; rather than tinkering round the edges. That redraft should include a significant section on summary/expedited reviews.

What we currently have is a non statutory guidance document which really isn’t worth the paper it is written on. We will all refer to this in hearings, as it is the nearest thing to the Government’s interpretation of this highly impactful part of the Licensing Act. The guidance document can be found here.

We have all laboured with this clumsily drafted document for some time but the High Court has brought the deficiencies of the document into sharp focus in the case of: Sharanjeet Lalli and The Commissioner of Police For The Metropolis (1) The Council of the London Borough of Newham (2) [2015] EWHC 14 (Admin).

In this case, which concerned the definition of “being associated with serious crime”; the High Court expressed considerable concern about the quality of the non-statutory guidance document. In John Howell QC’s (sitting as a Deputy High Court Judge) judgment, he referred to the guidance document in the following terms:

“35. The Home Office issued non-statutory guidance in 2012, “Section 53A Licensing Act 2003 Summary Review Guidance”, on which Mr Phillips seeks to rely. It states (inter alia) that:

“2.4 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 this power?
  • Should an alternative power be deployed? Is the incident sufficiently serious to warrant use of the powers in sections 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 a closure power).
  • What added value will use of the expedited process bring? How would any interim steps that the licensing authority might take effectively address the problem?

2.5 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.

36. The guidance also indicates that an “intended use” of the power of summary review includes tackling the use of dangerous weapons and the violence they fuel. It also contains a sample certificate that contains a section headed “I am giving this certificate because I am of the opinion that other procedures under the Licensing Act are inappropriate in this case because” and a note providing examples of such reasons, namely “the degree of seriousness of the crime and/or disorder, the past history of compliance in relation to the premises concerned”.

45. The different functions vested by Parliament in a senior member and the chief officer of the relevant police force respectively, however, are obfuscated in the non-statutory guidance issued by the Home Office. Somewhat confusingly the sample certificate provided in that guidance invites the senior member of the police force giving the certificate to state that he or she is giving it because he or she is of the opinion that other procedures under the 2003 Act are “inappropriate”, rather than providing the reasons why he or she holds the opinion that the licensed premises are associated with serious crime or serious disorder. Similarly paragraph [2.4] of that guidance invites the senior member to consider a number of matters in deciding whether or not to sign a certificate that are directed at whether or not an application for a summary review should be made (which is a matter for the chief officer of the relevant police force). Paragraph [2.5] recommends that these points are also addressed in the chief officer’s application for summary review, although the prescribed form for that only requires the chief officer to give details of the association of the premises with serious crime, serious disorder or both (the existence of which is a matter for the senior member of the force giving the certificate) rather than the reasons why, given any such association, the chief officer is making the application for summary review. But, in any event, there is no advice provided in the non-statutory guidance on what may constitute an association between licensed premises and serious crime or serious disorder. I have, therefore, derived no real assistance on that question from its contents.”

The paras above are taken from the High Court decision and the judge highlights that the guidance document is confusing. That it does nothing to assist either the senior officer in drafting the certificate declaring that in his/her opinion the premises are associated with serious crime or serious disorder or both. Neither does it assist the authority in making its decision on the necessity of interim steps or the decision on the final review.

I have long been a proponent that the s. 182 statutory guidance should cover this properly. This guidance document states:

“This Guidance is provided to licensing authorities in relation to the carrying out of their functions under the 2003 Act. It also provides information to Magistrates’ Courts hearing appeals against licensing decisions and has been made widely available for the benefit of those who run licensed premises, their legal advisers and the general public. It is a key medium for promoting best practice, ensuring consistent application of licensing powers across England and Wales and for promoting fairness, equal treatment and proportionality.

"The police remain key enforcers of licensing law. This Guidance does not bind police officers who, within the parameters of their force orders and the law, remain operationally independent. However, this Guidance is provided to support and assist police officers in interpreting and implementing the 2003 Act in the promotion of the four licensing objectives.”

The Guidance has to be followed unless the authority can give very good reason for departing from it. This has been enforced in a string of High Court cases which have commented upon this.

It seems wrong that such a key document which is relied upon by all Licensing Act practitioners, licensing authorities and the Courts still remains silent on this key piece of the legislation. The Home Office should take some time to prepare a full and careful section dealing with their advice on an area of the Act which has led to a considerable amount of litigation. Particularly where the legislation itself is not clearly drafted….isn’t that the purpose of guidance?

Paddy Whur is a partner at Woods Whur. He can be contacted on 0113 234 3055 or This email address is being protected from spambots. You need JavaScript enabled to view it..