Clause 34 - Drunkenness or disorder on licensed premises

Criminal Justice and Police Bill – in a Public Bill Committee at 3:00 pm on 1st March 2001.

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Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 3:00 pm, 1st March 2001

I beg to move amendment No. 50, in page 25, line 22, after 'not', insert `knowingly'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this we will take amendment No. 49, in page 25, line 30, at end insert—

`(2A) It shall be sufficient, for the purposes of proving that all reasonable steps were taken within the meaning of subsection (2), to show that the person became drunk other than on the licensed premises in question, and that no reasonable person would have believed that he was drunken when he entered those licensed premises.'.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The amendments are designed to deal with a case in which a person comes into licensed premises appearing sober and it subsequently becomes apparent that he is drunk. The offence that we are discussing is permitting drunkenness or violent conduct on licensed premises. It is well known that alcohol can have a delayed effect, and that some of the cocktails drunk these days can take effect suddenly. We want to provide a defence for licensees in cases in which they will be assumed to have taken all reasonable steps necessary to prevent drunkenness if they can show that a person did not become drunk on their premises through the alcohol that he was served there. In such cases, no reasonable person would have believed that the person was drunk when he entered the premises. The amendment deals with the issue of delayed effect. I would be grateful to hear the Minister's response.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The Minister will remember that exactly the same point was made on the Terrorism Bill and the Regulation of Investigatory Powers Bill in the previous Session. It concerns the shift between the burden of evidence and the burden of proof. I would like to probe him, and I support the amendments. One must ensure a degree of personal liability and knowledge. Otherwise a ridiculous burden is placed on a publican, who must constantly judge between people who may be sober, not quite so sober, slightly less sober, beginning to be slightly drunk, more drunk or very drunk. People could start in one category and quickly move to another. One can go from being merry and pleasant to being not quite so merry, more merry and violent, bothersome and riotous.

Proposed new section 172A(2) would be affected by amendment No. 49. I understand that a publican may be charged with permitting drunkenness. All that must then be proved is that there is some evidence that a person was drunk on the premises. That is a ``how long is a piece of string'' sort of qualification. It is probably not difficult to find a drunken person on any premises containing a significant number of people—one needs only to find a person who looks as if he has been there for a long time.

Under the Bill, the burden of proving that the relevant person and any persons employed by him took all reasonable steps to prevent drunkenness will lie on that person. One has only to put the allegation on the table and it is for the publican, manager or licensee to refute it. I am unhappy with that presumption. I understand the public policy objective of ensuring that landlords keep an orderly house, to use the old phrase, but I would be much happier if, prompted by the amendments, the Minister would look again at the wording, and if he would go further and reconsider the way in which we would have someone convicted. It seems wrong that a conviction should arise because one cannot prove a negative, rather than its being necessary to prove an offence.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Does the hon. Gentleman agree that it would be helpful if the Minister were able to tell us that his legal advice was that knowledge was necessary in order to permit drunkenness or violent, quarrelsome or riotous conduct? It would imply that the knowledge was part of the offence.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I think that the Minister will respond to that in a moment. I do not know whether the Licensing Act 1964 includes a definition of the word ``drunk''. I presume that it does not. I presume that it is a matter of evidence and case law. Therefore, it is rendered more open to abuse and variable interpretation by magistrates or others who do not require the qualification of a breath test. We are talking about evidence such as singing and being red in the face.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I want to support the amendment and the tone of the remarks made by the hon. Member for Southwark, North and Bermondsey. There will be real concern about how broadly the provision can be interpreted. If there is not a statutory definition of drunkenness—plainly, there is not—the wide powers that will be given will provide significant opportunity for prosecutions to occur. We must do better for those in the licensed trade, who will have enormous difficulty in enforcing the provision. It is not fair to impose that on the licensed trade without a set definition of drunkenness.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

The purpose of the clause is to insert proposed new section 172A into the Licensing Act 1964. It will extend to all staff employed on licensed premises, rather than just the licensee, the responsibility to prevent drunkenness and disorder and not sell or serve alcohol to drunks. Section 174 of the 1964 Act has also been amended so that all staff, rather than just the licensee, would have the right to refuse to admit, or to expel from the licensed premises any person who is drunk, violent, quarrelsome or disorderly. The use of the power will enable all staff to take action to prevent the committing of offences under proposed new section 172A.

The amendments would qualify that significantly. Amendment No. 50 would mean that the relevant person named in proposed new section 172A could only commit the offence of permitting drunkenness or violent, quarrelsome or riotous conduct to take place in licensed premises if he did so knowingly. Amendment No. 49 would provide a new defence, which relates to proposed new section 172A(2), if he or she could show that the person became drunk other than on licensed premises, or that no reasonable person would have believed him to be drunk when he entered.

Amendment No. 50 is answered by the intervention of the hon. Member for North-East Hertfordshire on the hon. Member for Southwark and Disorderly—[Laughter.] I abase myself and apologise to the hon. Member for Southwark, North and Bermondsey. I know that he advises people to run away from burglars, but not, I think, from disorder.

The amendment would mean that the offence of ``knowingly'' permitting drunkenness would differ from the offence of permitting drunkenness under section 172. No justification exists for such a distinction because the use of the word ``permit'', in exactly the way to which the hon. Member for North-East Hertfordshire referred, implies knowledge. The addition of the word ``knowingly'' is therefore unnecessary.

It is important to understand that proposed new section 172A does not apply to licensees. The offence in respect of holders of justices' licences is contained in section 172 of the Licensing Act 1964, but it is far older than that. It relates to the point about the definition of drunkenness. Case law on the offence goes back more than 100 years. That case law establishes that to permit implies power to prevent, and, therefore, knowledge that the person is drunk. That is the logical use of language that leads us to suggest that the word ``knowingly'' is not necessary.

Proposed new section 172A recognises that it is now not uncommon for pubs to be run by staff who are not holders of justices' licences. Licensees might be absent from the premises, and control might be in the hands of managers or other staff. Alternatively, the spouse of the licensee might be in control. Proposed new section 172A describes a ``relevant person'' as any person who works on the premises in any capacity, whether paid or unpaid, who has the authority to deal with such matters.

Amendment No. 49 would weaken the clause. First, the proposed defence would not be available to licensees covered by section 172 of the 1964 Act. A different regime would therefore apply to a manager running a pub who was not actually a licensee. That does not make sense.

Secondly, those in the licensed trade have known for more than 100 years that it is unlawful for a drunk to enter licensed premises. When the licensee or manager is aware of the drunk's arrival, his presence constitutes an offence. For example, it would be unlawful to serve a drunken person with a sandwich and black coffee, because his presence alone is an offence; he simply must not be there, and that has always been the case. The licensee and his agents are empowered by the 1964 Act to expel such people, and it is the duty of the police to assist them in doing so.

Amendment No. 49 would change the approach to the control of licensed premises; it would be all right to have drunks on the premises as long as they became drunk somewhere else. The law must remain that people who are drunk and disorderly, wherever they became drunk, should not be permitted on licensed premises, and it should be the responsibility of the people operating the licensed premises to keep them out. If they ignore that duty, they should be liable for prosecution.

Finally, the additional test that

``no reasonable person would have believed that he was drunken when he entered those licensed premises'' is unnecessary for the reason already given. The offence is one of permitting, which, as I have explained, implies knowledge.

The clause is important because the pattern is changing in the way that licences are offered, just as multinational corporations develop. However, we must not allow the change in the structure of the industry to weaken the obligation of the people on the premises, in whatever capacity and whoever they may be, to ensure that drunkenness and disorderly behaviour cannot take place on the premises.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 3:15 pm, 1st March 2001

Will the Minister clarify two points of interpretation in proposed new section 172A(2)? First, are the two parts cumulative for the offence to be committed, so that a person has to be charged before it is proved that he or she is drunk? Secondly, will the burden of proving that all reasonable steps have been taken for preventing drunkenness be a ``beyond reasonable doubt'' or a ``balance of probabilities'' burden—in other words, a civil or a criminal burden? If it is a criminal burden, an unfair obligation may be placed on the defendant.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

First, the offences are cumulative, as the hon. Gentleman suggests. Secondly, the ``all reasonable steps'' test is a criminal test; I am aware that that is tougher, but I defend that on the grounds that our aim is to recognise the changing nature of the industry and the obligation of licensees to ensure that the situation in the premises is properly supervised.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I have no problem with the public policy issue, but I ask the Minister to think again about the latter point. It is extremely difficult for a defendant to satisfy a bench or jury that he or she took all reasonable steps beyond reasonable doubt. The police will arrive on the scene later; they will not have been there at the time of the events leading up to their arrival. The alleged drunk—the person who caused the problem—may say, ``No, they did not ask me'', or ``I was only asked once''. The landlord must not only say that he took all reasonable steps but prove it in a way that leaves no doubt at all, although he may be the only person present who is on the side of that argument. It may be that no one else is capable of giving circumstantial or additional evidence. I shall not vote against the clause, but I ask the Minister to take advice and consider whether that measure does not add a level of obligation that is not generally the case in licensing law.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I will take further advice, but the public policy issues are important, as the hon. Gentleman has acknowledged, which is why we have adopted our position.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I was going to press the Minister to give that assurance about the shifting burden. However, as he gave the assurance, I will say no more. We may want to return to the subject on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 124, in page 26, line 13, after `servant' insert `or'.

No. 125, in page 26, line 14, leave out first `or'.—[Mr. Charles Clarke.]

Clause 34, as amended, ordered to stand part of the Bill.