Closure notices: just say no

What are seen as heavy-handed police tactics always raise the hackles of licensees, but on this occasion I have some sympathy with the trade at the actions of Lincoln police recently.

They are using the now-infamous section 19 of the Criminal Justice and Police Act 2001 to force pubs to stop selling alcohol "on the spot" until alleged breaches of their licence conditions are corrected. They claim that the "closure notice", which they issue in such circumstances, gives them the right to order that the bar is shut while the licensee takes steps to put matters right.

In my view this is over-stepping the mark by a considerable distance. This notice has no legal sanction, because it is just a "notice", not an order. That can only come from the magistrates when they hear the facts of the case.

It is worth going back to the origins of the new-found power. The relevant section of this Act is headed "Closure of unlicensed premises". Reading what follows makes it entirely clear that it was intended to deal with premises that held no licence, yet were selling alcohol.

Both police and local authorities are given power to issue a closure notice, which can be served on anyone who appears to be responsible for the illegal sales, and anyone who could be affected by a subsequent closure of the premises. The notice advises those persons that if the unlicensed activities do not stop, the police will apply to the court for a closure order, which could affect the access to the premises as a whole. Nowhere does it suggest that it applies to already licensed premises, presumably because at the time it was aimed entirely at illicit trade in alcohol.

All this changed, however, back in 2003 when an undebated and unnoticed amendment was made to section 19, buried away right at the back of schedule 6 to the Licensing Act. It changed the phrase "unlicensed sale of intoxicating liquor", which was the main offence, to "unauthorised sale of alcohol".

At first sight, of course, this appeared to be merely a difference in words. But at a stroke it brought in breach of conditions, because selling alcohol except in accordance with a premises licence (including conditions) is technically an unauthorised sale.

Spurred on by a Home Office guidance note, police started using this closure notice not merely as advice of an impending court application, but as a means in itself to "punish" errant licensees. They are advised to put in their notice on the steps to be taken to rectify the breaches of conditions the sentence "Sales of alcohol shall stop until the above matters are put right" — or words to that effect.

There is no explicit power to do this. There is also no offence of "failing to comply with a section 19 notice" because it was never intended that section 19 should have any legal force. It is a warning notice of impending legal action. What the police ought to do, to comply with the Act, is to advise the licensee of the perceived breaches and tell him to put it right, or they will take the matter to the magistrates.

That in itself should be enough to get the trade to comply. The "punishment" of stopping bar sales is disproportionate and unnecessary.

I wish a group of licensees that has suffered this treatment would seek support for an action against the police, who in my view would not be indemnified against a claim for damages, because the Licensing Act protection would not apply. Alternatively, they could just say no. It is a matter that needs to be resolved urgently.