Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities

Guidance on section 142 of the Licensing (Scotland) Act 2005 for licensing boards and local authorities.

7. Control of Order


187. This guidance has no binding effect on police officers who, within the terms of their force orders and the law, remain operationally independent. The guidance is provided to support and assist police officers and Licensing Boards in interpreting and implementing Part 7 of the Act in the interests of public safety, the prevention of disorder and the reduction of anti-social behaviour.

188. This guidance cannot cater for every circumstance and that circumstances may arise where officers will determine the need to operate in ways which will not wholly conform to it. However, at all times, senior police officers deploying the powers in question should seek to ensure that their actions are appropriate, proportionate and necessary in all the circumstances.

189. Licensing Boards and police officers reading this guidance may also find it beneficial to familiarise themselves with the terms of: -

  • The explanatory notes accompanying the Act; and
  • The policy memorandum accompanying the Act

190. Police powers contained in sections 94 to 99 of the Act should help ensure that premises licence holders, occasional licence holders, and premises managers, carry out their responsibilities in a way that helps maintain order and minimises anti-social behaviour on licensed premises.

191. The powers are intended to make these individuals more aware of their responsibilities to the wider community. As such, the potential as well as the actual use of these powers should help prevent disorder on the relevant premises. The powers therefore have a significant deterrent value. In addition, an effective police licensing policy, promoting good crime prevention strategies and professional practice among holders of premises licences and premises managers, should result in the extended powers being used minimally.

192. Good practice should involve an effective working liaison, and system of communication between the police, Licensing Standards Officers and managers of licensed premises. It is recognised that a great deal will depend on the willingness of licensees, premises managers and premises users to involve themselves in a partnership approach, but those licensees who fail to take a socially responsible attitude will place themselves at greater risk of police action under these powers than other licensees, managers, premises managers and premises users who actively co-operate.

Closure Orders and Emergency Closure Orders

193. Section 97 (2) of the Act provides for a senior police officer to apply to a Licensing Board to close licensed premises in the interests of public safety. Unlike the provisions in the 1976 Act, the power provides an additional mechanism for the police to authorise immediate closure in the interests of public safety.

194. This is set out in section 97 of the Act:

  • A senior police officer may, if the officer reasonably believes that:

    (i) there is, or is likely imminently to be, disorder-
    (ii) on, or
    (iii) in the vicinity of any licensed premises, and
    • closure of the premises is necessary in the interests of public safety, and
    • the risk to public safety is such that it is necessary to do so immediately and without making an application to the relevant Licensing Board
    make a closure order in relation to the premises.

195. The maximum duration for such orders are up to 24 hours. Such orders may only be made where it is necessary in the interests of public safety. These powers should not be used where it has been possible to anticipate the disorder arising, for example, in connection with intelligence about likely future disorder at a football fixture or in connection with a demonstration. In those circumstances the appropriate course then is for the police to apply to the Licensing Board for a closure order in respect of the premises under section 97(1) of the Act. Where a senior police officer proposes to issue an emergency closure order on a premises, they must notify the appropriate Licensing Board of this action. The format of these forms will be set out in regulations.

196. Emergency closure orders should only be used as last resort and police officers should bear in mind that decisions to close licensed premises will almost always have a seriously damaging commercial impact on the business involved, and possibly on the livelihoods of licence holders, managers, and members of staff or may disrupt an event that has been planned for a considerable period of time.

197. The Police should be aware that any decision to deploy the powers available to them to make an emergency closure order under the Act in respect of premises to which a premises licence relates will in most cases lead to a review of the licence by the Licensing Board This will involve a hearing to determine whether or not it is necessary for the promotion of the licensing objectives to exercise its powers to take any steps in relation to the licence including its revocatation.

198. A decision by the Licensing Board to proceed on that basis will therefore involve police attendance at the hearing and the preparation of material relating to the review.

199. On many occasions, other options will be available to the police, some of which are discussed below.

Voluntary co-operation

200. The police should, whenever possible, seek the voluntary co-operation of licensees, premises users, and named premises managers in resolving incidents of disorder or potential disorder rather than move directly to a closure order.

201. If police officers are aware that any premises are showing signs of problematic behaviour relating to disorder, excessive drunkenness or noise which is disturbing local residents, it is sensible to provide early warnings and reminders to premises license holders, and named premises managers of their responsibilities and duties under licensing law; and of the police powers of closure.

202. Where, despite warnings, licensed premises exhibit problems over a period of time, but no single instance is sufficient in itself to justify closure action, the police may seek a review of the premises licence under Part 3 of the Act.

203. Where the police attend an incident, following complaints about disorder, or attend at the request of the licensee or Licensing Standards Officer, and a senior police officer of Superintendent rank or above reasonably believes that closure is necessary under the terms of the Act, police officers should advise the licence holder, and named premises manager, and premises user immediately. Wherever possible, police officers should then give the licence holder, manager, or premises user an opportunity to close the premises voluntarily, on police advice, until the following day. A closure order will normally only have to be made if police advice is disputed or rejected and it becomes necessary to take action to impose closure. When giving advice to close voluntarily, police officers should make clear that they are not engaging in a negotiation. The view of the senior police officer will be final.

204. However, even if the licensee, named premises manager is willing to close voluntarily, it will remain open to the senior police officer to decide to serve a closure order, if he or she judges that to be the right course of action in all the circumstances. It is recognised that circumstances could arise which necessitate such action.

205. Against this background, police officers should also note that a decision not to make a closure order or to agree to voluntary closure will not prevent a later decision by the police to seek a review of the premises licence by a Licensing Board, if that course of action is judged appropriate. Section 36 of the Act allows any person to apply to the appropriate Licensing Board for a review of the licence on any of the grounds specified in that section. The police should be aware of this mechanism as this may be the appropriate avenue for them in the first instance where they are aware of problems that may arise with a licensed premises which are not imminent. This may reduce the need for a closure order.

In the vicinity of licensed premises

206. A closure order may be made on grounds of disorder on or in the vicinity of the premises. A question therefore arises as to how far from the premises incidents can take place which can be considered to be "in the vicinity" of a particular premises. Whether or not an incident was "in the vicinity" of the licensed premises is ultimately a matter of fact to be decided by the courts. However, there should be a causal connection between any disorder or likely disorder and the closure of the licensed premises. The senior police officer cannot close the premises under this provision unless "closure is necessary in the interests of public safety". Accordingly, closure of those particular premises must directly impact on the danger to the public safety being caused by the disorder, or likely disorder, taking place or expected imminently to take place on, or in the vicinity of, the premises. The disorder and the necessity for closure of the premises must therefore be connected. This issue also arises in the context of any extension of a closure order.

207. Some licensees, premises users, and named premises managers of licensed premises may consider it unfair that they should be held accountable for incidents taking place outside their immediate control. However, as explained elsewhere, closure orders are not designed as penalties but as a means of ensuring public safety.

Likely disorder

208. A further question arises when any future disorder is likely to take place and would justify a closure order being made. The Act requires that the disorder should be likely to be imminent. As noted in the geographical context, there also has to be a causal connection between the likely disorder and the need to close the particular licensed premises involved. Any expected incident must be imminent, in which case closure of the licensed premises should diminish the probability that disorder will take place.

Length of police closure order

209. The maximum permitted duration of an order under section 97 of the Act cannot exceed 24 hours. This does not mean that the length of the closure should automatically be set for 24 hours on every occasion. The criteria for making a closure order places an obligation on the senior police officer to close the premises for the period he/she estimates it would take to end the threat to public safety, or as the case may be, the nuisance to the public. In practice, therefore, closure orders could last between 30 minutes and 24 hours depending upon the circumstances of each case.

210. An extension to that emergency closure period can be made by the police only if the senior police officer reasonably believes that: -

  • there continues to be, or is likely to continue to be, disorder on, or in the vicinity of the premises;
  • extending the original closure period is necessary in the interests of public safety; and
  • the risk to public safety continues to be such that it is necessary to extend the original closure period immediately and without making an application under section 97(1) of the Act.

211. Any extension may be for a further period of only up to 24 hours from the end of the original closure period.

212. If, for example, a closure is made at 9pm on a Monday evening because of disorder caused by gangs fighting in a public house, closure might only be appropriate for up to the time when the premises licence requires the premises to close, perhaps midnight. This could be because the senior police officer reasonably believes that there is a threat of gang members (those not arrested) returning to the premises before closing time but after the police have left. However, if the threat is not expected to have subsided by closing time, it may be appropriate to impose a closure for a period extending into the following day.

213. There is no appeal mechanism for licensees against the imposition of a closure order.

The manager of the premises

214. The Act refers to the "the premises manager" who is defined in section 19 as being the individual for the time being specified as such in the premises licence. Every licensed premises must have a named premises manager who will be responsible for the day to day management of the premises and the staff. This is particularly relevant to the arrangements for serving a closure order. It is not relevant whether or not the individual has the expression "manager" in his or her job title or description. If the holder of a premises licence or the named premises manager or premises user has left any member of staff in charge of the premises, with responsibility at that time for compliance with the licensing laws, that person will normally have been given the authority to close the premises in compliance with the law. Accordingly, the individual would have the delegated authority to close the premises and could therefore be served with notice of a closure order in respect of the premises.

Enforcing a closure order

215. The Act does not require the licence holder or the police to clear the premises of customers following the service of a closure order, however, it is assumed that normally premises would empty, as it would be an offence for a responsible person to allow any licensed premises to be open in breach of a closure order. The closure relates to the premises. If an individual who is drunk or disorderly is asked to leave by a constable, a licence holder, premises user, or named premises manager and then refuses to leave, he or she does become liable to prosecution. Where a police officer is asked for assistance to remove such a customer, the officer is under a statutory duty to afford that assistance.

216. The lack of any duty on customers to leave the premises automatically following the service of a closure order should be noted. The police already have powers to clear an area if disorder is taking place, and need no additional powers in this respect under the Act. However, the police may propose a phased emptying of larger premises for the purpose of safe dispersal, for example, keeping disorderly gangs separately or because it is in the interests of public safety to keep law-abiding customers inside for a temporary period while those involved in anti-social behaviour outside are dispersed by the police.

217. The police officers involved should recognise that closing premises will sometimes involve putting a potentially volatile and disgruntled group of customers onto the streets. In this context, where possible, it is good practice to ensure that other licensed premises nearby are warned of the action being taken and of licence holders' and others' obligations not to allow disorderly conduct on their premises. As stated above, under the Act, police officers are under a duty, when requested by a licence holder or other person as referred to above, to assist in ensuring that drunken or disorderly persons are expelled from licensed premises, and police officers should therefore offer assistance when necessary in preventing the entry of troublemakers to other licensed premises who might be seeking to cause new problems elsewhere.

218. Police officers are also reminded that, particularly where large capacity venues are involved, they may need additional police assistance to clear the resulting crowd and the availability of that assistance should be considered before any decision is made to make a closure order.

Antisocial Behaviour etc. (Scotland) Act 2004

219. Licensing Boards may wish to be aware that under section 26 of that Act a senior police officer (officers of or above the rank of superintendent) can authorise service of a closure notice. The effect of such an authorisation is that a constable will serve on the relevant premises a closure notice. A closure notice prohibits access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises. Failure to comply with the notice amounts to an offence.

220. A senior police officer may only authorise service of a closure notice where that officer has reasonable grounds for believing that at any time during the immediately preceding 3 months a person has engaged in antisocial behaviour on the premises; and that the use of the premises is associated with the occurrence of relevant harm, which is defined at section 40 of that Act as significant and persistent disorder or significant, persistent and serious nuisance to members of the public.

Exclusion Orders

221. The Licensed Premises (Exclusion of Certain Persons) Act 1980 provides for the courts to make an exclusion order against a person, if they are found guilty of a violent offence committed on licensed premises (other than an off-licence). In light of the concerns that were raised during the consultation on the Antisocial Behaviour (Scotland) Act about off-licences and how they can become focal points for antisocial behaviour, and in order to support responsible licensees, it is appropriate that under the new system, exclusion orders should be extended to include off-licences.

222. The Act, therefore repeals in its entirety the 1980 Act and provides that, where a person is convicted of a violent offence committed on, or in the immediate vicinity of, any licensed premises, the court by or before which the person is convicted of the offence may, in addition to any sentence imposed or other disposal in respect of the offence, make an order prohibiting the person from entering:

(a) the licensed premises concerned, and

(b) such other licensed premises (if any) as the court may specify in the order,

(c) except with the appropriate consent.

223. Further to this the Act also provides that the premises licence holder for the licensed premises concerned may themselves, by summary application to the sheriff made no later than 6 weeks after the date of the conviction, seek an order prohibiting the person convicted from entering the licensed premises concerned. The Act sets out those conditions that must be considered by the sheriff.


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