Licensing (Scotland) Act 2005 section 142: guidance for Licensing Boards

11. Control of Order

Introduction

General

11.1 Part 7 of the Act concerns the control of order in connection with licensed premises. Part 7 introduces two mechanisms for the purposes of the control of order: exclusion orders and closure orders (including emergency closure orders). Licensing Boards have functions as regard closure orders, but no direct role as regards exclusion orders. However, in so far as it may be useful for Licensing Boards to have an understanding of exclusion orders, this Chapter of the Guidance provides an overview of the operation of exclusion orders.

Closure Orders and Emergency Closure Orders

11.2 Section 97 to 101 of the Act concern 'closure orders' and 'emergency closure orders'. These are orders which require a licensed premises to be closed for such period as may be specified in the order (section 97(3) of the Act).

Closure Orders

11.3 Licensing Boards may make a closure order under section 97(1) of the Act. Licensing Boards can only do so on the application of a senior police officer^[3]. The form of such an application is set out in Parts A and B of schedule 1 of the Licensing (Closure Orders) (Scotland) Regulations 2007 (SSI 2007 No. 35) (the 'Closure Order Regulations').

11.4 Before it can grant an application, the Licensing Board must be satisfied that closure of the premises is necessary in the interests of public safety by reason of the likelihood of disorder on, or in the vicinity of, the premises. That request would normally result in a hearing at which the licence holder can make submissions concerning the proposed "Closure Order" and it is a matter for the Licensing Board to decide whether to grant the Order or not.

11.5 A closure order made by a Licensing Board is to be in the form set out in Part C of schedule 1 of the Closure Order Regulations. A closure order comes into force in relation to a licensed premises when a constable gives notice of the order to a 'responsible person' (section 97(6) of the Act). The period for which the closure order has effect will be specified in the order. For these purposes a 'responsible person' is defined in section 101 of the Act as:

• in the case of a premises in respect of which a premises licence has effect:
  • the premises licence holder, or
  • the premises manager,
• in the case of premises in respect of which an occasional licence has effect, the person who holds the occasional licence, and
• in either case, any person working at the premises in a capacity (whether paid or unpaid) which authorises the person to close the premises.

11.6 Additionally, a constable of, or above, the rank of inspector must terminate a closure order if the constable is satisfied that it is no longer necessary in the interests of public safety for the premises to be closed (section 98(1) of the Act). The constable, must ensure that notice of the termination is given to the Licensing Board which made the closure order (section 98(2)(b) of the Act)^[4].

11.7 In respect of control of order, it is clear that good practice is essential to ensure the mechanisms within the 2005 Act can be used appropriately. Good practice should involve an effective working liaison and system of communication between the police, Licensing Standards Officers and managers of licensed premises. Many Licensing Boards' Statements of Licensing Policy emphasise the importance of good working relationships with partner agencies such as Police Scotland and in a similar vein many Licensing Boards encourage licensees to proactively engage with Police Scotland.

11.8 For example in relation to "Preventing Crime and Disorder", West Lothian Licensing Board comments in its statement of licensing policy that:

• "The Board expects premises licence holders to co-operate and liaise with Police Scotland where required to ensure that consistency with this licensing objective is upheld in the operation of the premises at all times. Applicants are encouraged to discuss crime prevention procedures in their premises with Police Scotland".

11.9 It is recognised that a great deal will depend on the willingness of licensees, premises managers and premise users to engage in a partnership approach. Those licensees who fail to take a socially responsible attitude are more likely to place themselves at a greater risk of police action under these powers than those who actively cooperate.

11.10 Section 12A of the 2005 Act imposes a duty on every chief constable to send a report to the Licensing Boards in the chief constable's police area. The report should, amongst other matters, set out the chief constable's views on the policing issues relating to the 2005 Act during that year and the following year. For example, the Annual Licensing Report 2020-21 submitted by Chief constable Iain Livingstone QPM to the Clackmannanshire Licensing Board stated that:

• "During 2020/2021 there has been no necessity to apply for a closure order nor implement an emergency closure order in the Clackmannanshire area".

Emergency closure orders

11.11 Where time is of the essence it is possible for emergency closure orders to be made under section 97(2) of the Act. An emergency closure order can be made by a constable of, or above, the rank of inspector. In such cases, the constable makes the closure order rather than the Licensing Board (and therefore the constable does not need to have applied to the Licensing Board under section 97(1) of the Act for an order to be made by the Licensing Board). The constable can make the order if they reasonably believe that:

(a) there is, or is likely imminently to be, disorder on, or in the vicinity of, any licensed premises,

(b) closure of the premises is necessary in the interest of public safety, and

(c) the risk to public safety is such that it is necessary to do so immediately and without making an application under section 97(1) of the Act (i.e. an application to the Licensing Board for a closure order).

Under regulation 5 of the Closure Order Regulations, when an emergency closure order is made under section 97(2) of the Act, the officer who has made the order must give notice of the order to the Licensing Board in the area of which the premises in question are situated. This notice must be given as soon as practicable after the order has been made. An emergency closure order is to be in the form set out in Part 1 of schedule 2 of the Closure Order Regulations. The period of closure specified in an emergency closure order cannot exceed 24 hours, however that period can be extended under section 99 of the Act.

Section 99(1) of the Act, contains a power for a constable of or above the rank of Inspector to extend the original emergency closure order period by a further period not exceeding 24 hours. The constable must reasonably believe that the following conditions are met in relation to the premises:

• that there continues to be, or is likely to continue to be, disorder on, or in the vicinity of, the premises,
• that 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 closure period immediately and without making an application under section 97(1) of the Act (i.e. an application to the Licensing Board for a closure order).

11.12 An extension of an emergency closure order has no effect unless a constable has given notice of the extension to a responsible person before the expiry of the period during which the original emergency closure order has effect. Such notice is to be in the form set out in Part 2 of schedule 2 of the Closure Order Regulations. As mentioned above in respect of closure orders, who is a responsible person is set out in section 101 of the Act.

11.13 Regulation 5 of the Closure Order Regulations requires that the Licensing Board in the area of which the premises in question is located must be notified when the period of an emergency closure order is extended under section 99(1) of the Act. A constable of, or above, the rank of inspector must terminate an emergency closure order if the constable is satisfied that it is no longer necessary in the interests of public safety for the premises to be closed (section 98(1) of the Act). The constable must give notice to a responsible person (section 98(2)(a) of the Act) and the Licensing Board in the area of which the premises is situated (regulation 5 of the Closure Order Regulations).

11.14 Emergency closure 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.

11.15 Licensing Boards may wish to be aware that emergency closure orders are likely to be used as a last resort. Decisions to close licensed premises may have an 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.

11.16 Any decision to deploy the powers available 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 revocation.

11.17 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.

Voluntary co-operation

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

11.19 Licensing Boards may wish to be aware that the police, whenever possible, may 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.

11.20 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, they may decide to provide early warnings and reminders to premises licence holders, and named premises managers of their responsibilities and duties under licensing law; and of the police powers of closure.

11.21 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.

11.22 Where the police attend an incident, following complaints about disorder, or attend at the request of the licensee or Licensing Standards Officer, and a constable of or above the rank of Inspector reasonably believes that closure is necessary under the terms of the Act, police officers may choose to advise the licence holder, and named premises manager, and premises user immediately. Police officers may then give the licence holder, manager, or premises user an opportunity to close the premises voluntarily, on police advice, until the following day. If police advice is disputed or rejected, it may become necessary for action to be taken to make a closure order. When giving advice to close voluntarily, police officers may wish to make clear that they are not engaging in a negotiation. The view of the constable of or above the rank of Inspector will be final.

11.23 However, even if the licensee, or named premises manager is willing to close voluntarily, it will remain open to the constable of or above the rank of Inspector 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.

11.24 Against this background, Licensing Boards and police officers may wish to be aware 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. Police officers may wish to 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

11.25 A closure order made by the Licensing Board or an emergency closure order made by a constable of or above the rank of Inspector 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. Premises cannot be closed under these provisions 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.

11.26 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 in paragraph 11.2 of this Guidance, closure orders are not designed as penalties but as a means of ensuring public safety.

Likely disorder

11.27 A further question arises when any future disorder is likely to take place and would justify a closure order being made. Section 97 of the Act requires that the disorder should be likely (or in the case of emergency closure orders, likely 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. As regards emergency closure orders, 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 emergency closure order

11.28 An emergency closure order cannot have effect for more than 24 hours (section 97(5) of the Act). This does not mean that the length of the closure should automatically be set for 24 hours on every occasion. The criteria for making an emergency closure order places an obligation on the constable of or above the rank of inspector to close the premises for the period they estimate 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.

11.29 If, for example, a closure is made at 9 pm 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 constable of or above the rank of inspector 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.

11.30 Any extension under section 99(1) of the Act to an emergency closure period may be for a further period of only up to 24 hours from the end of the original closure period.

11.31 There is no appeal mechanism for licensees against the imposition of an emergency closure order.

Enforcing a closure order

11.32 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 under section 97(7) of the Act 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 responsible person or a constable and then refuses to leave, they commit an offence (section 116 of the Act). Where a constable is asked for assistance to remove such a customer, the officer is under a statutory duty to provide that assistance (section 116(4) of the Act).

11.33 Licensing Boards may wish to be aware that the police may propose a phased emptying of larger premises for the purpose of safe dispersal, for example, to keep disorderly gangs separate or because it is in the interests of public safety to keep law-abiding customers inside for a temporary period while those involved in antisocial behaviour outside are dispersed by the police.

11.34 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.

11.35 Additional police assistance may be required to clear the resulting crowd, particularly where large capacity venues are involved. The availability of that assistance is likely to be taken into consideration before any decision is made to make a closure order.

Antisocial Behaviour etc. (Scotland) Act 2004

11.36 Licensing Boards may wish to be aware that Antisocial Behaviour may also be tackled under section 26 of the Antisocial Behaviour etc. (Scotland) Act 2004 a senior police officer (officers of or above the rank of Superintendent) can authorise service of a closure notice in respect of a premises. 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.

11.37 A senior police officer (officers of or above the rank of Superintendent) may, in a case involving antisocial behaviour) 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; and is satisfied that –

• the local authority for the area in which the premises are situated has been consulted; and
• reasonable steps have been taken to establish the identity of any person who lives on, has control of, has responsibility for or has an interest in the premises. (Relevant harm 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

11.38 Licensing Boards may wish to be aware of exclusion orders, to which sections 94 to 96 of the Act relate. Section 94(2) of the Act 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, except with the appropriate consent.

This formal exclusion order process is of course separate from any informal arrangement which is made between a licensed premises, or a set of licensed premises such as in a local Pubwatch scheme, to bar a particular individual.

11.39 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. Section 94(4) of the Act sets out those conditions that must be considered by the sheriff.