The wrath of grapes

29 Sept 2009|Feature|Add your comment

First we had the 2003 Licensing Act, which removed central legislative control of opening hours and handed it over to licensing authorities. The Act contained what the Home Office persist in calling a 'raft' of measures designed to control the effects of 24/7 pubs, and the Act was promoted as an aid to tourism, an inducement to a civilized European outdoors social life, and an economic enhancement.

In common parlance, a raft is the perilously unstable last resort of persons threatened by the sea '“ in this case a sea of cheap and ever-available alcohol. And now we have a new acronym to amend those choppy waters '“ DBOs. Drinking Banning Orders came into force on 31 August 2009, a companion to ASBOs, PNDs, (Penalty Notices for Disorder) and VOOs (Violent Offender Orders); a prophylactic quartet of measures to control not just what behaviour is, but what it might be.

The present introduction of civil order DBOs is only one part of what was intended by the 2006 Violent Crime Reduction Act, under which DBOs can also be part of a sentence imposed by a criminal court where there is a conviction for an offence committed under the influence of alcohol. The Home Office is holding back on introducing additional criminal sentencing power until they assess the effectiveness of civil DBOs in tackling the alcohol-fuelled misbehaviour.

~~A bit blurry~~

How that effectiveness is to be monitored is unclear, as is against whom the orders are targeted, and what the actual purpose of them is. The police already have extensive powers in respect of public drinking or drink-fuelled crime: apart from the power of arrest and charge for the actual offences committed, or drunk and disorderly if all else fails, they can order you to stop drinking or confiscate sealed or open bottles and cans of alcohol from anyone carrying it in any areas covered by Designated Public Places Orders (DPPOs); they can issue immediate penalty notices for criminal damage under £500, public order offences, the delivery sale and purchase of alcohol to or on behalf anyone under 18, being drunk in a public place, consuming alcohol in a designated public place when told not to do so. This is quite apart from Licensing Act powers against selling alcohol to anyone under 18, or anyone who is drunk.

Under section 30 of the Anti Social Behaviour Act 2003 a senior officer can authorize that trouble spots become 'dispersal areas', which triggers powers to clear the streets whether or not alcohol is involved; and of course under section 27 of the Violent Crime Reduction Act individuals who look like they are about to cause trouble can be given orders to leave areas and stay away from them for up to 48 hours.

~~Over the limit~~

Interestingly, the original suggestion for the time limit for that power was 24 hours '“ it was increased to 48 because of the extended drinking time permitted by the Licensing Act!

As well as all of this, pubs are encouraged to use their own banning powers, and the Pubwatch scheme set up by the police encourages pubs to join together, swap information about troublemakers including circulating their photographs, with the guarantee of a swifter response from the police if they call them. And we should not forget our ABC either '“ Acceptable Behaviour Contracts with conditions to monitor behaviour, which if breached can blossom into an ASBO. What identifiable hole in this raft of measures needs to be filled by yet another civil order?

Apparently, it is flexibility. DBOs, unlike ASBOs which have a minimum time limit of two years, can be imposed for a minimum of two months, with a maximum of two years. They can be imposed on anyone over the age of 16, who has engaged in criminal or disorderly conduct while under the influence. There is a token rehabilitative strand '“ voluntary attendance at an approved course can cut the time the ban extends.

~~A strong brew~~

The original draft consultation suggested that the power could be triggered either by the third or subsequent alcohol-related criminal conviction, or the third issue of an alcohol-related PND. But the final drafters of the power have a good head for a strong brew, and like their law neat: DBOs can be made after only one such incident, which need not result in criminal proceedings of any sort. It is sufficient for the magistrates court in their civil capacity to find that there has been some disorder caused, and that drinking was involved. The template for evidence gathering and presentation is taken from ASBOs. Hearsay and anonymized evidence is therefore acceptable.

Under section 1(3) of the Act, the prohibitions, otherwise open-ended and thus capable of prohibiting drinking at all, must include a ban on entering licensed premises such as pubs or clubs in the area. Unfortunately, as is laboriously spelled out in the Home Office Guidance, all supermarkets, all off licenses, most corner shops and grocers, cinemas and even garages are also licensed to sell the demon drink: conditions must be tailored to prevent 'disproportionate'' limitations on the freedom to go shopping.

Section 1(4) of the Act spells out that the prohibitions must not prevent the banned person from having access to their home, workplace, school, college and medical clinic, or anywhere else they have to go under an order or enactment of the court. What the bench should do if the banned person works in a supermarket or lives in a pub is not spelt out.

What is spelt out, amusingly, is that care must be taken not to interfere with religious rites: there is not yet a prohibition on clugging down the communion wine. However, for those with the dregs of a sense of humour, there is a fabulous defence. The power is not advised against anyone vulnerable through mental health issues '“ or who has a dependence on alcohol, defined as 'a cluster of physiological, behavioural, and cognitive phenomena in which the use of a substance takes on a much higher priority for an individual than other behaviours that once had greater value'. That is, 'You can't ban me '“ I'm a drunk!'

Cheers!

Legal News desk contact: editorial@solicitorsjournal.com|

~~A bit blurry~~

~~Over the limit~~

Interestingly, the original suggestion for the time limit for that power was 24 hours '“ it was increased to 48 because of the extended drinking time permitted by the Licensing Act!