Statement of Licensing Policy Appendix B - Licensing Enforcement Policy

1.0 Statement of objectives

The council, as licensing authority and responsible authority, is committed to the council’s priorities and will inform the enforcement actions taken. Amendments to priorities will be embedded automatically.

1.1

This service policy promotes efficient and effective approaches to regulatory inspection and enforcement that improve regulatory outcomes without imposing unnecessary burdens.

This is in accordance with the Regulator’s Compliance Code.

1.2

In certain instances, the service may conclude that a provision in the code is either not relevant or is outweighed by another provision.

It will ensure that any decision to depart from the code will be properly reasoned, based on material evidence and documented.

1.3

The service pursues a positive and proactive approach towards ensuring compliance by:

• supporting the better regulation agenda
• helping make prosperity and protection a reality for the city’s community
• helping and encouraging regulated entities to understand and meet regulatory requirements more easily
• responding proportionately to regulatory breaches
• protecting and improving public health and the environment

1.4

This policy is based on the 7 ‘Hampton Principles’ of:

• Economic progress

Regulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection.

• Risk assessment

Regulators, and the regulatory system as a whole, should use comprehensive risk assessment to concentrate resources in the areas that need them most.

• Advice and guidance

Regulators should provide authoritative, accessible advice easily and cheaply.

• Inspections and other visits

No inspection should take place without a reason.

• Information requirements

Businesses should not have to give unnecessary information or give the same information twice.

• Compliance and enforcement actions

The few businesses that persistently break regulations should be identified quickly and face proportionate and meaningful sanctions.

• Accountability

Regulators should be accountable for the efficiency and effectiveness of their activities, while remaining independent in the decisions they take.

1.5

The rights and freedoms given under the Human Rights Act, particularly Articles 6 and 8, will be observed, as will the provisions of the Regulation of Investigatory Powers Act.

2.0 Scope of the policy

2.1

This policy supports and supplements specific guidance on enforcement action contained in:

• the Statutory Code of Practice for Regulators
• Brighton & Hove City Council’s Corporate Enforcement Policy
• Statutory Codes of Practice
• relevant guidance documents and guidelines issued by government departments and coordinating bodies

2.2

This policy relates to actions taken to educate and enforce legislation where noncompliance has been identified or has a realistic potential to occur.

2.3

The policy is limited to those enforcement activities led by the Head of Regulatory Services.

3.0 Training

3.1

Officers undertaking enforcement duties will be suitably trained and qualified so as to ensure they are fully competent to undertake their enforcement activities.

4.0 Management systems

4.1

The service will maintain management systems to monitor the quality and nature of enforcement activities undertaken, to ensure (so far as is reasonably practicable) uniformity and consistency.

5.0 Enforcement options

5.1

The service recognises the importance of achieving and maintaining consistency in its approach to enforcement.

Statutory Codes of Practice and guidance issued by government departments, other relevant enforcement agencies or professional bodies will therefore be considered and followed where appropriate.

5.2

Sanctions and penalties will be consistent, balanced, fairly implemented and relate to common standards that ensure individuals’, public safety or the environment is adequately protected.

The aims of sanctions and penalties are to:

• change the behaviour of the offender
• eliminate any financial gain or benefit from non-compliance
• be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction
• proportionate to the nature of the offence and the harm caused
• aim to deter future non-compliance

5.3

Criteria to be taken into account when considering the most appropriate enforcement option include:

• the potential of the offence to cause harm
• confidence in the offender
• consequences of non-compliance
• likely effectiveness of the various enforcement options

5.4

Having considered all the relevant options, the choices for action are:

• Informal warning

All advice issued will be given in writing and specify the nature of the breach or offence, and the actions required to remedy the issue.

An informal warning may be included with the advice and may accompany higher-level actions, such as Enforcement Notices or Voluntary Surrender.

• Licence review

Licence review power will be used where an application for review relates to one or more of the licensing objectives.

• Taxi licence

Taxi licence suspension or revocation will be used to protect public safety. Other sanctions, such as Driving Standards Agency (DSA) testing, will be used to protect public safety and in accordance with the taxi licensing policy (Blue Book).

• Simple Caution

The issue of a Simple Caution by an authorised officer may be undertaken as an alternative to prosecution where it is considered unnecessary to involve the courts, and the offender’s response to the problem makes repeat offending unlikely, or the offender’s age or health makes it appropriate.

Cautions may only be issued where the offender makes a clear and reliable admission of guilt and understands the significance of acceptance.

• Prosecution

A prosecution is appropriate where there is a breach of a legal requirement, such that public safety, health, economic or physical well-being or the environment or environmental amenity is adversely affected.

The Crown Prosecutor’s Code of Evidential and Public Interests tests must be met in all cases. However, certain circumstances will normally justify prosecution to prevent the undermining of the service’s enforcement responsibilities, including:

• failure to comply with an Enforcement Notice
• declining a Simple Caution
• continued, reckless, negligent or premeditated non-compliance
• failure to pay a fixed penalty

• non-cooperation, acts of obstruction or threats of physical harm or abuse

   

• Injunctions

Injunctive action is a means of preventing an activity or course of action likely to result in significant risk to public or community safety or the economic well-being of consumers and businesses.

5.5

If the department is considering taking enforcement action which it believes may be inconsistent with that adopted by other authorities, the matter will be referred to the appropriate local coordinating body.

6.0 Informal warning

6.1

Informal action may be taken when:

• the act or omission is not serious enough to warrant formal action
• from the individual's/enterprise's past history, it can be reasonably expected that informal action will achieve compliance
• confidence in the individual/enterprise's management or ability to resolve the matter is high
• the consequences of non-compliance will not pose a significant risk to public health, public safety, animal welfare or the environment

6.2

When an informal approach is used to secure compliance with regulations, the written documentation issued will:

• contain all the information necessary to understand what is required and why
• indicate the regulations contravened, measures which will enable compliance with legal requirements and that other means of achieving the same effect may be chosen
• clearly differentiate between legal requirements and recommendations of good practice, such a differentiation will also be made when verbal advice is given 

7.0 Simple cautions

7.1

A Simple Caution may be issued as an alternative to a prosecution.

Cautions may be issued to:

• deal quickly and simply with less serious offences
• divert less serious offences away from the courts
• reduce the chances of repeat offences

7.2

The following factors will be considered when deciding whether a caution is appropriate:

• evidence of the suspect's guilt
• if a clear and reliable admission of the offence has been made either verbally or in writing
• whether it is in the public interest to use a caution as the appropriate means of disposal when taking into account the public interest principles set out in the Code for Crown Prosecutors
• the suspected offender must understand the significance of a simple caution and give informed consent to being cautioned

7.3

No pressure will be applied to a person to accept a Simple Caution.

7.4

The 'cautioning officer' will be the most appropriate officer from the Service Director, Service Assistant Director, Head of Service, Environmental Health   Manager or Licensing Manager.

The Cautioning Officer must not have taken an active part in investigating the case.

7.5

Should a person decline the offer of a simple caution, a prosecution will be recommended.

8.0 Prosecution

8.1

The department recognises that the decision to prosecute is significant and could have far-reaching consequences for the offender.

8.2

The decision to undertake a prosecution will be taken after proper consultation in accordance with the Scheme of Delegation for the council’s functions. 

The decision to proceed with a prosecution will normally be taken following legal advice.

The matters to be taken into account when deciding if the issue of proceedings is proportionate include:

• the seriousness and nature of the alleged offence
• the role of the suspect in the commission of the offence
• any explanation by the suspect or any agent or third party acting on their behalf
• was the suspect in a position of trust, responsibility or authority in relation to the commission of the offence
• is there evidence of premeditation or disregard of a legal requirement for financial reward
• risk of harm to the public, an individual or the environment
• relevant previous history of compliance
• reliability of evidence and witnesses
• any mitigating or aggravating circumstances or the likelihood that the suspect will be able to establish a defence
• suspect’s willingness to prevent a recurrence of the offence
• the need to influence the future behaviour of the suspect
• the likely penalty to be imposed
• if prosecution is in the public interest, there is a realistic prospect of conviction and sufficient evidence to support proceedings

8.3

All relevant evidence and information will be considered before deciding whether to instigate proceedings to enable a consistent, fair and objective decision to be made.

8.4

Where an act or omission is capable of constituting both a summary and either way offence, when deciding which offence to charge, the following will be considered:

• the gravity of the offence
• the adequacy or otherwise of the powers of the summary court to punish the offence
• the record of the suspect
• the suspect's previous response to advice or other enforcement action
• the magnitude of the hazard
• any circumstances causing particularly great public alarm
• comments from the council's Solicitor’s Office

8.5

As a general rule, an individual or business will be given a reasonable opportunity to comply with the law, although in some circumstances, prosecution may be undertaken without giving prior warning, such as if:

• the contravention is a particularly serious one
• the integrity of the licensing framework is threatened

9.0 Home Office and Government Advice: Problem premises on probation

9.1

The licensing authority supports the strategies of interventions and tough conditions to be assembled into packages released in 2008.

The current version is appended (Annex B).

10. Appeals

If any person is unhappy with the action taken, or information or advice given, they will be given the opportunity to discuss the matter with the relevant team manager, Head of Service or Assistant Director.

Any such appeal does not preclude any aggrieved person from making a formal complaint about the service or any officers. Any such complaint will be dealt with in accordance with corporate procedures and guidance.

Complaints that are not dealt with by the council’s complaints procedure are listed in corporate policy and include:

• complaints where the complainant or another person has commenced or intends to commence legal proceedings against the council
• complaints where the council has commenced or intends to commence legal proceedings against the complainant or another person relating to the matter of complaint

11. Shared enforcement roles

Lead agency status between Sussex Police, East Sussex Fire and Rescue Service and the council’s trading standards, environmental health and licensing officers is determined between the agencies at the county level.

The current position is appended (appendix D).

"Problem premises on probation" - Red and yellow cards: how it would work

The problem:

1. In many cases, revocation of a premises licence effectively kills any business which is focused on retailing alcohol. This means that not only the business owner suffers, but most people working there will lose their livelihoods. Many of these workers will be entirely innocent of any wrongdoing.

There is also an impact on those who rely indirectly on income from the premises, such as local food suppliers or cleaning contractors. The closure of a premises can deprive some communities of their local shop or restrict local consumer choice.

Enforcement agencies that apply for reviews and local councillors sitting on licensing committees are well aware of this potential impact, which can lead to a reluctance to use the powers in the Act to revoke the licence instantly for any failure to promote the licensing objectives. This risks patchy enforcement and uneven solutions to alcohol related problems around the country.

2. In addition, in many cases, enforcement agencies will prefer to negotiate additional voluntary conditions with problem premises against the threat of review as an immediate, pragmatic and less bureaucratic solution.

While this may be a reasonable approach in many cases, there is a risk that some premises are not being dealt with as firmly as necessary, particularly given the level of test purchase failures. Nor are voluntary agreements particularly visible, lessening the deterrent effect on other premises.

3. Government wishes to support the enforcement agencies and licensing authorities by providing clear guidance on a “yellow card / red card” system,  which would ensure a firm response to problems, but which give premises an opportunity to reform.

The intention is that such a system would be highly visible and send a clear message to alcohol retailers and the public that action will be taken against those who act contrary to the licensing objectives and the law.

4. The proposed interventions below would not prevent the giving of an instant red card in an appropriately serious case. It should be realised that a “test purchase” failure often masks multiple offences that have gone undetected.

Supporting enforcement agencies

5. The government will encourage enforcement agencies, mainly the police, trading standards officers and environmental health officers, to seek more reviews in the knowledge of the yellow card/red card system described below. This will mean not giving formal warnings.

It will mean that on identifying problem premises, the licensing authority will be engaged faster than it might have been in the past.

6. Enforcement agencies would be encouraged to seek reviews when local intelligence suggests that individual premises are selling to children or causing other crime problems, or causing noise nuisance.

7. Under the law, the licensing authority must then hold a hearing so long as the application relates to one of the 4 licensing objectives and is made by a responsible authority or by other persons, like a local resident or another local business.

First intervention

8. Responsible authorities will be encouraged to propose a package of touch new conditions to be added to the existing conditions, which are designed to combat the identified problem.

The kinds of conditions that we have in mind are set out in Annex A. These would not be appropriate for every premise and need to be tailored to the nature of the problem and the type of premises.

Such action should be supplemented where appropriate by:

• removal of the designated premises supervisor and his/her replacement (the manager is removed)
• suspension of the licence for between one day and three months, according to the circumstances
• restriction on trading hours, cutting hours of trading in alcohol
• clear warning that a further appearance will give rise to a presumption of revocation

9. If appropriate following review, the licensing authority should consider these packages of conditions and actions to challenge problem premises more aggressively.

10. For example, requiring a major supermarket to make all alcohol sales through a single till manned by a person aged 25 years or older in order to tackle sales to underage. Over a year, this would potentially cost such a supermarket £millions. It would also make them reflect on their levels of supervision at other stores.

11. In addition, enforcement agencies should make the premises in question a priority for test purchases and more regular inspections.

12. The aim would be to put the premises on probation. Effectively, they are given a yellow card. They are put on notice that the next offence or breach would mean an automatic second intervention, which would be a red card.

Second intervention

13. In the absence of improvement, enforcement agencies should seek another review. The licensing authority again must grant a hearing.

14. If satisfied on the issue of the lack of improvement, the licensing authority should look to revoke the licence. The action should be publicised in the area as an example to other retailers.

Implemention

15. Implementation requires:

• development with the Home Office of a toolkit and guidance for police, trading standards and ethos
• initial letters to the Leaders of local authorities and the Chief Executives
• ultimately, stronger statutory guidance to be laid in Parliament for licensing authorities themselves

16. Central Government cannot tell licensing authorities what to do. The review powers are devolved to them. Similarly, the central government cannot direct enforcement agencies on how to enforce the law. It would remain their judgement when and how to act.

Possible tough conditions to be assembled into packages

Note: These would not be appropriate for every premise and need to be tailored to the nature of the problem and the type of premises.

Greater control over sales

1. Designated checkout(s) for alcohol sales (supermarket). Impact on the protection of children from harm, but also impact on sales and goodwill (probable loss of trade to competitors).

2. Personal licence holder/DPS to be on site at all times during sales of alcohol. Impact on the protection of children from harm and new costs if additional staff have to qualify as a personal licence holder.

3. Personal licence holder/DPS to supervise and authorise every individual sale of alcohol. Impact on the protection of children from harm and new costs if additional staff have to qualify as a personal licence holder.

4. SIA-registered security staff to be present at points of sale to support staff refusing sales to under-18s and drunks.

5. Alcohol sales only to be made only by a person aged not less than 25 years. Impact on the protection of children from harm, but also impact on sales and goodwill (probable loss of trade to competitors).

6. CCTV installed at all points of sale and recorded. Recordings can be examined by a constable or a trading standards officer to determine sales to minors or intoxicated persons.

7. The licensed premises shall join the Brighton Crime Reduction Partnership (BCRP) scheme.

Training

8. All staff are to read and sign a declaration that they understand the law every time they start a shift.

9. Train all staff engaged in selling alcohol in alcohol awareness (not just personal licence holders). All new staff are to be trained within 2 weeks of commencing employment. Evidence of training to be retained in writing and to be available for inspection by any authorised person and training standards officers. Impact on all licensing objectives.

Alcohol sales banned at certain hours

10. No alcohol sales Monday to Friday between 4pm and 8:30pm. Impact on the protection of children from harm or targeted hours reflecting times when local intelligence indicates under-18s may be purchasing alcohol.

11. No alcohol sales Friday to Sunday. Impact on all 4 licensing objectives.

Alchohol displays

12. No displays of alcohol or advertising of alcohol promotions that can be seen from outside the premises.

13. No alcohol stocks promoted alongside goods likely to appeal to children (eg, confectionery, toys).

Cutting down on shoplifting

14. SIA-registered security staff to be present at alcohol aisles during opening times to prevent attempted underage sales or theft.

15. Location of alcohol stocks/displays not to be sited near the entrance/exit to deter shoplifting.

16. No direct public access to alcohol products, like tobacco and alcohol, is to be kept behind a dedicated kiosk.

Naming and shaming

17. Display an external sign/yellow card to state which of the licensing act objectives they have breached and what action has been taken against them.

Others

18. Maintain a log of all underage attempted purchases from those who appear to be under 18 or drunk.

19. Children aged under 18 years are not to be present or (not more than one child at any one time) on premises (other than children living on the premises or of the people working on the premises), or only children under 18 accompanied by an adult, to be permitted on the premises during retailing hours. Impact on the protection of children from harm.

20. Products to be labelled (a label stuck to the bottle or can) to show the details of the shop from which it was bought. The purpose would be to provide evidence of unlawful sales if the product is commonly found in the possession of persons under 18.

21. Designated single items, such as beer, alcopops and cider, are not to be sold to any person. Impact on the protection of children from harm. The purpose would be to reduce sales to children and drunks. An alternative would be to prescribe sales of beer, alcopops and cider in quantities of less than 4.

22. CCTV installed, monitored and 24-hour recordings kept for a week and made available to constables and persons authorised under the 2003 Act to help identify attempted proxy purchasing.

23. Where there is no designated smoking area, readmission after midnight should normally be prohibited.