In Accordance with: The Regulators’ Code and The Code for Crown Prosecutors
1. Introduction
1.1 Since the Government’s implementation of various pieces of licensing related legislation,
Leeds City Council’s Entertainment Licensing Section has adopted the following Acts:
- **Licensing Act 2003
- **Gambling Act 2005
- Scrap Metal Dealers Act 2013
- Police And Criminal Evidence Act 1984
- Regulation of Investigatory Powers Act 2000
- Local Government (Miscellaneous Provisions) Act 1982 – Part 1,2 and 4
- House-to-House Collections Act 1939 and Regulations
- Police, factories, etc (Miscellaneous Provisions) Act 1916
- Vagrancy Act 1824
- Accessories and Abettors Act 1861
- Hypnotism Act 1952
- Byelaws For The Good Rule For The City Of Leeds 1984
** Refer to 7.2, below, prior to any inspection or formal enforcement action being taken for
age-restricted services.
1.2 The purpose of these guidelines is to set out Enforcement Strategy for the Licensing
Section, on behalf of Leeds City Council, to ensure compliance with the above-mentioned
Statutes and to regulate and control varying aspects of Licensing and issues that arise
around Licensing.
1.3 The guidelines are also in place to ensure that enforcement decisions are always consistent,
impartial, fair and relate to common standards to ensure that the general public of the
Leeds Metropolitan District are equally protected, ensuring the best possible level of service.
Ensuring also that health and safety measures are in place and that everything is pursued
with the interest of the public as the deciding factor.
1.4 These guidelines set out factors to be taken into account when considering the nature of
enforcement action to be taken and the roles and responsibilities of delegated officers in the
implementation of these guidelines, taking into account that each piece of legislation is very
specific, covering very different subject matter and therefore can not be taken in the same
vein.
2. The Principles of Enforcement
2.1 The Entertainment Licensing Section regards prevention as better than cure and believes in
firm but fair regulation. It offers information and advice to those it regulates and seeks to
secure co-operation within the spheres of Licensing. Underlying these guidelines of firm but
fair regulation are the principles of: -
2.2
i) Proportionality in the application of the law and securing compliance
ii) Consistency of approach
iii) Transparency about how the Section operates and those regulated may expect
from the Section, and
iv) Targeting of enforcement action.
3. Proportionality
3.1 Proportionality means relating enforcement action to the risks. Those whom the law
protects and those on whom it places duties, expect the action taken by enforcing
authorities to be proportionate to any risks to members of the public’s health and safety and
to the seriousness of any breach.
3.2 Some incidents or breaches of regulatory requirements cause or have the potential to place
health and safety at serious risk. Others may interfere with people’s enjoyment or rights, or
the Section’s ability to carry out its activities. The Licensing Section’s first response is to
prevent that risk from occurring or continuing. The enforcement action taken will be
proportionate to the risks posed and to the seriousness of any breach of the law.
4. Consistency
4.1 Consistency of approach does not mean uniformity, it means taking a similar approach in
similar circumstances to achieve similar ends. The Licensing Section aims to achieve
consistency in, advice given, the response to alleged offences and the use of powers and
decisions on whether to prosecute.
4.2 Officers need to take account of many variables; the scale of impact and the history of
previous incidents or breaches. Decisions on enforcement action are a matter of
professional judgement and the Licensing Section through its officers, needs to exercise
discretion. The Licensing Section will continue to develop consistency including effective
arrangements for liaison with other council services and enforcing authorities.
5. Transparency
5.1 Transparency is important in maintaining public confidence in the Section’s ability to
regulate. It is about helping those regulated and others, to understand what is expected of
them and what they should expect from the Licensing Section. It means making clear why
an officer intends to take or has taken enforcement action. It also means distinguishing
between statutory requirements and advice or guidance about what is desirable or good
practice but not compulsory.
5.2 Transparency is an integral part of the role of Liaison & Enforcement Officers. Staff are
trained and procedures have been developed to ensure that:-
i) where action is required, it is clearly explained (in writing, if requested) why that
action is necessary and when it must be carried out; a distinction being made
between best practice advice and legal requirements.
ii) opportunity is provided to discuss what is required to comply with the law before
formal enforcement action is taken, unless urgent action is required, for example,
to deal with a statutory nuisance which is likely to be of limited duration or a
dangerous structure in imminent danger of collapse.
iii) written explanation is given of any rights of appeal against formal enforcement
action at the time the action is taken.
6. Targeting
6.1 Targeting means making sure that regulatory effort is directed mainly towards those whose
activities give rise to the most serious risk or where the risks are less well controlled. Action
will be principally focused on those directly responsible for the risk and who are best placed
to control it, i.e. Licensees of premises.
6.2 The Licensing Section will ensure that it will make every effort to prioritise regulatory
effort. Factors include response to complaints from the public, the existence of statutory
powers and the assessment of risk to members of the public (e.g. the potential for
overcrowding in licensed premises or the use of unregistered door staff).
6.3 Repeated incidents or breaches of legal requirements which are related may be an
indication of an unwillingness to change behaviour/cooperate, or an inability to achieve
sufficient control. A relatively low risk premises or activity poorly managed has potential for
greater risk to members of the public/entertainers/staff than a higher risk site or activity
where proper control measures are in place.
6.4 Where formal enforcement action is necessary the person responsible should be held to
account. Where several persons share responsibility, the Section will take action against
those who can be regarded as primarily in breach.
7. Prosecution and Enforcement Guidelines
(taking into consideration the above Principles of Enforcement)
7.1 Within the Licensing Section there are 4 possible outcomes of an investigation or inspection
which are listed below: -
i) To take no action
ii) To take informal action
iii) To use formal cautions
iv) To prosecute
7.2
i) Under the Regulatory Enforcement and Sanctions Act 2008 (RESA), an enforcing
authority (not the Primary Authority) must check with the Better Regulation
Delivery Office (BRDO) before inspecting a business whether there is a national
inspection plan in existence. Where an inspection plan has been published, a local
authority enforcing authority must have regard to the plan when inspecting a
business to ensure any action taken is consistent, and
ii) seek the consent of the Primary Authority to proceed with any formal enforcement
action (such as simple cautions, prosecutions or enforcement notices).
8. No Action
8.1 The decision to take no action can only be considered when full compliance of current
legislation has been achieved.
9. Informal Action
9.1 To ensure compliance with current legislation. This would include issuing warnings, giving
advice and requests for action to be completed in a reasonable period of time. The
circumstances for the appropriate use of informal action are listed below, however, this list
is not exhaustive and each case should be considered on its own individual merits: -
i) From the licensees/individuals/organisations past history it can be reasonably
expected that informal action will achieve compliance.
ii) The act or omission is not serious enough to warrant any type of formal action.
iii) Circumstances may dictate whether informal action would be more
appropriate/effective than taking a formal approach.
9.2 When an informal approach is used to ensure compliance, it is important that any written
documentation sent contains: -
i) Information necessary to understand what work is required and why it is necessary,
ii) Indicate the legislation or regulations contravened and specify to what is needed to
ensure compliance is achieved,
iii) A clear differentiation between legal requirements and recommendations of good
practice in verbal and/or written advice.
10. Simple Cautions (formerly Formal Cautions)
10.1 These may, under certain circumstances, be issued as an alternative to prosecution (rather
than a court hearing). They are only to be considered if there is sufficient evidence for the
matter to proceed by way of prosecution. The merits for cautioning rather than proceeding
with a prosecution will be considered once the matter is passed to the Regulatory and
Enforcement Section. Simple Cautions may be raised by the defence and officers
investigating the matter should be aware that the following conditions need to be fulfilled
before a caution is administered: -
i) There must be evidence of the suspected offender’s guilt sufficient to give a realistic
prospect of conviction,
ii) The suspected offender must admit the offence,
iii) The suspected offender must understand the significance of a simple caution then
give an informed consent to being cautioned,
iv) If there is insufficient evidence to consider a prosecution then the conditions will
not satisfy a simple caution. It would be inappropriate to use a simple caution if an
offender does not make a clear reliable admission of the offence
v) There is no legal obligation for any person/organisation to accept a simple caution
and no pressure should be applied for the person to accept such a caution but they
must be advised that invariably legal proceedings would be instigated if this
acceptance was not forthcoming,
vi) Simple Cautions should not be administered without discussions with one or more
of the following: the Licensing Officer, the Investigating Officer, Regulatory and
Enforcement, and any other person deemed to be involved.
11. Prosecutions
11.1 Officers should refer to The Code for Crown Prosecutors when considering the merits of
proceeding with a prosecution. This document is generally used by Regulatory and
Enforcement in ensuring that fair and consistent decisions are made.
11.2 The principles for decision making as laid down in The Code for Crown Prosecutors falls into
two tests and should be adopted by the Entertainment Licensing Section: -
i) The evidential test
ii) The public interest test
12. The Evidential Test
i) The prosecutor must be satisfied that there is enough evidence to provide a
‘realistic prospect of a conviction’ against each defendant on each charge. The
defence case must be considered and how this is likely to affect the prosecution
case.
ii) The prosecutor must consider whether the evidence can be used and is reliable.
13. The Public Interest Test
13.1 A prosecution will normally take place unless there are public interest factors tending
against the prosecution, which clearly outweigh those tending in favour. It is important to
take into account the fact that public interest factors that can affect the final decision to
prosecute usually depend on the seriousness of the offence or the circumstances of the
offender. Various factors may increase the need to prosecute, however, others may suggest
that another course of action would be more appropriate.
13.2 Listed below are some common factors in favour of prosecution. The more serious an
offence, the more likely it is that a prosecution will be needed in the public interest. A
prosecution is likely to be needed if: - (this list is not exhaustive)
i) the defendant’s previous convictions or cautions are relevant to the present
offence,
ii) there are grounds to believe that the offence is likely to be continued or repeated,
for example the history of recurring breaches of the terms and conditions of a
Premises Licence,
iii) the defendant was in a position of authority and trust,
iv) there is evidence that the offence was premeditated,
v) the evidence clearly shows that the defendant was a ringleader or organiser of the
offence,
vi) there is evidence that the offence was carried out by a group,
vii) if the offence, although not serious in itself, is widespread in the area where it was
committed,
viii) a weapon was used or violence was threatened during the commission of the
offence.
13.3 Listed below are some common interest factors against prosecution. A prosecution is less
likely to be needed if: - (this list is not exhaustive)
i) the court is likely to impose a nominal penalty,
ii) the loss or harm can be described as minor and was the result of a single incident,
particularly if it was caused by misjudgement,
iii) there has been a long delay between the offence taking place and the date of the
trial, unless:
a) the offence is serious
b) the delay has been caused in part by the defendant
c) the offence has only recently come to light, or
d) the complexity of the offence has meant that there has been a long
investigation;
iv) a prosecution is likely to have a detrimental effect on the victim’s physical or
mental health, always bearing in mind the seriousness of the offence,
v) the defendant has put right the loss or harm that was caused (but defendants must
not avoid prosecution solely because they pay compensation,
vi) the defendant is elderly or is, or was at the time of the offence, suffering from
significant mental or physical ill health, unless the offence is serious or there is a
real possibility that it may be repeated,
vii) details may be made public that could harm sources of information, internal
relations or national security, or
viii) the defendant is a minor and the stigma of a conviction may harm her/his future
prospects.
13.4 Deciding on the public interest is not simply a matter of adding up the number of factors on
each side. The Investigating Officer must decide how important each factor is in the
circumstances of each individual case and proceed to make an overall assessment.
14. Application of the code and principles to the Entertainment Licensing Section
14.1 The initial decision to recommend the instigation of legal proceedings will in general be
restricted to those persons/organisations that blatantly disregard the law, refuse to take
advice, refuse to achieve basic legal standards, often following previous contact with the
Section and / or who put the general public / staff / performers at risk.
14.2 The Investigating Officer, when making a decision on the appropriateness for legal
proceedings to be instigated, should take the following criteria and examples into account.
14.3 Flagrant Breach of the Law
For example, if a visit to a licensed premises reveals a blatant breach of the law such as the
public / staff / entertainers safety or welfare is put a serious risk (e.g. over-occupancy or
locked/blocked fire exits), it would be appropriate to take legal action.
14.4 Failure to comply with lawful requirements
If a licensee of a licensed premises fails to comply with the terms and conditions of his /
her licence (lawful requirements), having been advised on previous occasions, proceedings
should be instigated. This should be considered also for terms and conditions/regulations
stipulated in any legislation for any licence issued by the Section.
14.5 History of non-compliance
If there is a history of non-compliance with the law by the offender then legal action should
be taken if the matters identified are flagrant breaches of the law. (This list is not
exhaustive)
i) in the case of licensed premises the Licensee should be warned (verbally, in writing
or by a Inspection Report Sheet) of non-compliance/s of the terms and conditions
of his/her licence. This is to be specified at least one occasion, the second occasion
the licensee is to be made aware that if there is another non-compliance then legal
proceedings may be instigated. This is dependent on the breaches incurred and the
severity of the implications of Health & Safety on the performers, staff & public (i.e.
Unregistered door-staff involved in aggravated circumstances). This extends to
licensees that have multiple premises, the total number of non-compliances across
all premises will be taken into consideration. Premises that continue to carry on
unauthorised licensable activity should be treated in the same manner. The
unauthorised licensable activity should be identified in correspondence to the
licensee.
ii) House-to-House Collections and Street Collections, which are not licensed & are
registered with the Charities Commission, should be sent an initial warning letter,
which indicates if they collect again without a licence legal proceedings will be
instigated. Consideration for this should only be taken if the collections are
legitimate (this does not include unlicensed collections undertaken by Commercial
Participators / Professional Fundraisers),
iii) unlicensed sex establishment owners should receive a letter asking them to apply
for a licence within a stated period of time; if they do not comply or continue not to
fulfil the significant degree criteria then legal proceedings shall be instigated.
However, each premises should be looked at individually, a flagrant breach of law
or for public benefit may be more appropriate with those premises selling
unclassified videos or R18.
14.6 Public Benefit
Legal action should be taken on the first occasion that certain events are witnessed (such
as illegal Street Collections and House to House Collections) because of the extreme
improbability that the person once seen committing an offence would be seen on a
subsequent occasion. Public benefit of a prosecution would also be indicated by the
importance of the case.
15. Preparing Prosecution Cases
15.1 Witnesses
The investigating Officer, when compiling information to consider which course of action is
appropriate, should bear in mind that witnesses, where necessary, should be able and
willing to cooperate with the instigation of legal proceedings.
15.2 Defences
The Investigating Officer should take into account the likelihood that the defendant will be
able to establish a defence. This includes for example: - “Due diligence” in relation to
licensed premises breaches of terms and conditions.
15.3 Suspected offenders should always be invited to offer an explanation before a prosecution is
instigated and their explanation considered by the investigating officer. These requirements
are met under The Police and Criminal Evidence Act 1984 (as amended), which is available
for all investigating officers in the Entertainment Licensing Section.
15.4 The eventual decision should be made on the relevant criteria and not only is a prosecution
in the public interest, but that it would be appropriate for resources to be expended on such
a course of action. The instigation of legal proceedings will be recommended by the
investigating officer and authorised on behalf of the Section by either the line-manager, the
section head, head of service or any other appropriate officer of Licensing and Registration
who are responsible for reviewing the details of the documentation before submission to
Regulatory and Enforcement.
16. Compliance with the Guidelines
16.1 All staff working in the Entertainment Licensing Section will be responsible for ensuring that
the requirements of the policy have been followed. The line-manager, section head, head of
service or any other appropriate officer will then be authorised to recommend that the
appropriate course of action be implemented in accordance with these guidelines.
17. Working with other Regulators
17.1 Every effort will be made to avoid duplicating work which is the responsibility of other
authorities. The Entertainment Licensing Section will not generally investigate or enforce
where more specific legislation is enforced by another regulatory body. The Section will,
however, liaise with that other body, to ensure effective coordination, to avoid
inconsistencies or duplication and to ensure that any action is taken by the most
appropriate body and for the most appropriate legislative breach.
18. Complaints
18.1 On receipt of a complaint, the appointed officer will impartially investigate all relevant facts
and report the findings to the complainant.
18.2 Complaints are seen as an opportunity to identify possible weaknesses in service delivery
and as a step towards making improvements. Information obtained from the investigation
of complaints will be used to examine possible action to improve service provision.
