Licence transfers and the police
As you know, for both of these changes, the application form allows the change to have immediate effect. This is extremely important where, for example, the DPS has walked out of your premises and you would have to close the bar were you unable to immediately replace him or her with another personal licence holder. Similarly, where the urgent sale of a premises needs to take place, the transfer can have immediate effect, allowing the new owners to trade straight away.
The Licensing Act allows the police to object to both the transfer of the premises licence and the identification of a new DPS within 14 days. The wording of the sections that deal with such objections is very similar and states, “where a chief officer of police (notified under the relevant section) is satisfied the exceptional circumstances of the case are such that granting the application would undermine the crime-prevention objective, he must give the relevant licensing authority a notice stating why the reasons are so satisfied”.
There are two hurdles the chief officer of police has to overcome:
- “Exceptional circumstances” means just that, and cannot be used as a fishing exercise to look behind the application. The guidance to the Licensing Act states that the police may object where, for example, a DPS in relation to the particular premises gives rise to the exceptional circumstances. It goes on to provide the example of a personal licence holder who has been allowed to keep his licence following a conviction for selling alcohol to underage persons, and the premises to which that holder has been transferred as DPS is known for underage drinking.
- Similarly, for the transfer of a premises licence, the guidance identifies that objections should “be rare and arise because the police have evidence that the business or individuals seeking to hold the licence or business are individuals linked to such persons who are involved in crime (or disorder)”. It suggests that the police should not be using the system to “vet” transfer applicants routinely and seek hearings as a fishing expedition to enquire into applicants’ backgrounds.
There is a natural tendency of all responsible operators to want to work with the police. However, this should not be to the point where they are dictating your business model. Certainly these types of application cannot be used to make operators agree additional conditions on the premises licence in return for a commitment not to object from the police.
Recently, we have dealt with an objection from the police alleging very serious criminal conduct on the part of the proposed DPS. A well-established and very successful operator was subjected to unwarranted and sordid allegations from a disaffected former employee. While the police clearly had to investigate the allegations, the claims alleged by the former employee were not only unfounded but contradictory — they simply couldn’t have occurred as had been suggested.
By the time the application was issued, the criminal matter had been investigated and dealt with. The applicant had been interviewed by the police and categorically denied the allegations. The officer heading the investigation released him
from his bail requirements and he was effectively a free, innocent party. However, the police continued to use the substance of the allegations as grounds for objecting to the DPS application, despite the fact that the evidence was flimsy and their witness was unreliable. Just as importantly, even had the evidence been up to standard it did not meet the “exceptional circumstances” requirement in the legislation.
Eventually, the police withdrew its objection based upon evidence provided by us on behalf of the proposed DPS.
This evidence was always available but the police lodged its objection irrespective of its availability. I remain unsure why it took the intervention of a solicitor prepared to defend the position of the applicant for the police to realise that its objection was unsustainable.
The current requirements are very clear: there should be “exceptional circumstances”, and the evidence must make a causal link between concerns about the proposed DPS and the new premises.
Drifting into other areas that are not “exceptional” should be resisted as an abuse of the legal process and the right to a fair hearing.