Bumpy ride for some transfers

19-Sep-2011 - Last updated on 20-Sep-2011 at 10:26 GMT

Peter Coulson: Concerned by legislation over licence transfers

You don’t hear much about licence transfers these days. Of course, under the old system we had ‘transfer sessions’ where the new incumbents were paraded in front of the bench and had to answer questions to show their suitability (unless they had already been granted a protection order). But now, the majority of transfers are carried out with a simple notice to the licensing authority and no hearing is required.

But there is a situation that does occur from time to time when a transfer is needed to protect the licence. Examples of this are where a company or individual is going bankrupt, or where there is a big question mark over the current premises licence holder or his operation. Then a ‘strategic change’ is often the best policy.

According to a concession in the new Licensing Act, transfers can take immediate effect, literally on the day that the application is handed over to the licensing officer. Under section 43, the premises licence will then have effect during the application period “as if the applicant were the holder of the licence”.

However, they are not yet the true premises licence holder, because if the police ‘smell a rat’ or think that the new applicant is simply a front man for an undesirable individual or organisation, they can lodge an objection under the crime prevention licensing objective.

This happens comparatively rarely, but it does happen. The applicant continues in charge of the premises, however, until such time as the licensing authority holds a hearing to rule on the police objection. If they uphold the objection, then they refuse the application and notify the applicant, at which point the transfer fails.

What does this mean? The former premises licence holder is left with the licence, because it must revert to its previous owner or lapse, and that does not appear to be provided for in the Act. Even if that person or company has consented to the transfer and wishes to be rid of the licence anyway, they appear to have it back, unless during the application period (which could be at least 14 days or longer) they or the company have gone bust, in which case it lapses.
This is one of the areas where the Licensing Act is far from satisfactory. A recent change has fortunately allowed an interim authority to be applied for to keep the licence alive in cases of sudden insolvency, and the period for this has been increased from a ludicrous seven days to a more reasonable 28.

But there is no indication, if there is a police objection to the new applicant, whether a second application for a transfer can be made during the period, or whether it has to wait until the committee’s determination, at which point a new, immediate transfer application can be lodged, with a request for instant effect.

This is obviously an area for a specialist licensing lawyer, because there are complex issues and a considerable amount of liaison work with the authorities is required. The police are very concerned about certain pubs being run behind the scenes by others who put up an ‘acceptable’ person to hold the licence, and they pursue this with some vigour in certain areas of the country.

But sometimes they may act over-zealously and seek to deny a legitimate applicant because of some claimed connection with criminals or criminal activity.

This is where good representation is essential. There will need to be discussions to thrash out the issues, which the Act clearly envisages.

An experienced lawyer will know how to handle these and obtain the best result.