The ‘ASB’ act was brought in partly to tidy up a host of previous powers and remedies to deal with antisocial behaviour, including, of course, those that affect licensed premises — whether those premises are the victim or indeed the cause.
Gone now are ‘crack-house closure orders’ and antisocial behaviour closure orders under the Anti-Social Behaviour Act 2003, so too are the provisions under the same act to deal with the closure of noisy premises, together with closure orders under section 161 of the Licensing Act 2003, which related to nuisance or disorder at specific licensed premises.
These have been replaced with a new form of closure where the use of the premises is likely to in nuisance or disorder near that premises.
Here is the first thing to watch out for. Most of these closure powers (both old and new) understandably have the word ‘closure’ in them. This has led and could still lead to a serious breakdown in communication at the critical time between the licensee and the police, and subsequently the licensee and his or her solicitor.
Several times I have been called by a worried licensee telling me he has just been ‘closed down’ by the police but without being entirely sure under which powers. It is vital to know which powers the police are using because different powers afford you different rights.
And here is the second point — you may think from what I have said above that there is now only one closure power. There is not. The old ‘closure notice’ under section 19 of the Criminal Justice and Police Act 2001 remains, and can still be used by the enforcing authorities.
This particular form of closure notice is most likely to be used as a warning where there is a breach of a licence condition (for example, CCTV should be working and it is not), giving the operator a minimum of seven days to resolve the problem or face the risk of the police applying to magistrates for a closure order.
For what it is worth, I call these ‘s19 closure notices’. They are a warning and nothing more, and the police cannot close you down off the back of such a notice.
However, the mere fact of such a notice may suggest that you are breaching a licence condition, which itself is evidence of unauthorised trading under s136 of the licensing act and could result in prosecution.
Moreover, continued breach can lead to an application to magistrates for a closure order. Your reaction to a s19 notice should, therefore, be prompt and effective.
The other main type of closure notice is the notice under the ASB Act 2014 and does mean closure, subject to the specific wording of the notice. This may be issued if the use of your premises has resulted in or is likely soon to result in nuisance or disorder and a police inspector or local authority officer is satisfied that the notice is necessary to prevent that nuisance or disorder from continuing.
A hearing following a closure notice must take place at a magistrates’ court no later than 48 hours after initial service of the closure notice and, therefore, time-frames are very tight. Magistrates can initially order closure for a period of three months and, if a closure order is made, this will in itself trigger the review procedure under the licensing act.
These two closure powers should not be confused with the police’s power to apply for an expedited review of the premises where there has been serious crime and/or disorder on licensed premises.
One of the outcomes of this procedure is that the initial hearing (the ‘interim steps’) can take place without your knowledge and the first thing you hear about it is to be served with the decision, which may be that your licence is suspended pending the final review or any interim application you choose to make. This is, in effect, a closure but not a ‘closure notice’.
You can of course also be ‘offered’ closure as an alternative to prosecution if there is evidence that you have persistently sold alcohol to children, under s169A of the licensing act.
Of the main closure powers, however, I think we are likely to see more closure notices (and subsequent hearings) under the 2014 act as the police and local authority get to grips with the new legislation — a power that really does mean immediate closure — followed by a hearing before magistrates within two days and a full-blown licence review a few weeks later, with attendant risks and costs.