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«(Published in Herzog-Evans (ed) (2010) Transnational Criminology Manual, Wolf Legal Publishing, Nijmegen.) Alcohol licensing, crime and disorder Roy ...»

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(Published in Herzog-Evans (ed) (2010) Transnational Criminology Manual, Wolf

Legal Publishing, Nijmegen.)

Alcohol licensing, crime and disorder

Roy Light

Law Professor, Bristol Law School, UWE, England1

Abstract

Licensing law in England and Wales has over the past 600 years moved through cycles of liberalisation

and constraint. The latest liberalising period can be traced from the 1960s, culminating in the passing

of the Licensing Act 2003. Yet even before the Act came into force in 2005 the pendulum had swung back towards constraint. The promised laissez faire approach to alcohol availability (and a continental cafe culture) quickly evaporated as ‘Booze Britain’ was propelled through a period of liberal constraint into a severe bout of legislative repentance. Cheap alcohol, increased availability, binge drinking and town/city centre crime and disorder presaged calls for minimum pricing, tough enforcement and even a return to the concept of ‘need’ as a basic criterion in licensing applications. These matters, together with the implications for criminology of state efforts to control our favourite drug, are considered in this chapter.

Résumé. Les lois anglaises et galloises relatives aux licences permettant la vente d’alcool de ces dernières 600 années, ont évolué de façons cyclique : de la libéralisation à la restriction. La dernière période de libéralisation remonte aux années 1960 et a culminé avec la Loi sur les Licences de 2003.

Mais dès avant l’entrée en vigueur de cette loi en 2005, le pendule avait à nouveau penché du côté de la restriction. L’approche initialement prévue de type « laissez faire », quant à l’accès à l’alcool (et la culture continentale du café) s’est rapidement évaporée tandis que « L’Angleterre Biturée » a été propulsée au devant de la scène durant une période allant de la restriction libérale allant vers un éruption sévère de repentance législative. L’alcool bon marché, sa disponibilité croissante, le bingedrinking et les crimes et désordres en résultant au centre des villes ont présagé d’appels à une tarification minimale, à un contrôle sévère, et même à un retour au concept de « besoin » comme critère de base pour les licences. Ces questions, ainsi que les implications en criminologie des efforts étatiques pour contrôler notre drogue préférée, seront traitées dans ce chapitre.

1. Introduction Criminologists have long posited a link between alcohol and crime. As Radzinowicz and King (1977, p.102) put it ‘the links between crime and alcohol are long standing and well known’ However, this link is often assumed rather than demonstrated by research (see Light 1994) and it is generally accepted that there can be no single direct cause model to explain the relationship (Pernonen 1982). The purpose of this chapter is not to chart the research findings on alcohol and crime, rather to focus on the relationship between licensing law, alcohol availability and crime and disorder. And it is disorder and public displays of alcohol-related anti-social behaviour that appear most closely linked with licensing provisions. This is true historically and has assumed a major prominence in Britain over the past decade or so. 2 The Licensing Act 2003, with its potential for ‘round the clock drinking’ in England and Wales, has pushed alcohol to the forefront of the alcohol/crime debate and spawned a chain of subsequent legislation seeking to penalise and control irresponsible outlets and irresponsible drinkers. Yet within this debate, rather than concentrating simply on badly behaved individuals, the more crucial question must be whether over-provision of outlets and a low unit price for alcohol is implicated in the aetiology of alcohol-related crime and disorder. Rather than devising ever more methods to tackle individual alcohol users and abusers should we be concerned more roylight@uwe.ac.uk Results from the 2008/09 British Crime Survey show that 26 per cent of respondents thought that people being drunk or rowdy in public places was a very or fairly big problem in their area (Home Office 2010a).

with regulation of the supply and price of alcohol in our society? The latter perhaps by way of taxation or minimum unit pricing; the former by utilisation of the licensing regime to manage the supply of alcohol. This paper looks at the role of licensing law in controlling the availability of alcohol and its historical development. 3 It then charts the shift from the laissez faire approach developed in the late twentieth century, through the philosophy of liberal constraint underpinning the 2003 Act and concludes with the current outburst of legislative repentance.

The Licensing Act 2003 has attracted much public debate by virtue of its abolition of permitted hours for the sale of alcohol and the introduction instead of possible 24 hour drinking (see further Light 2005). The Act, it is said, has caused an epidemic of alcohol abuse and ‘binge drinking’ in England and Wales.

However, this contention is wrong on at least two grounds. First, the Act has not heralded the introduction of a 24 hour drinking culture. Relatively few 24 hour licences have been granted to public houses and nightclubs and, of those that have been, few utilise the full hours (see further DCMS 2010, p.24). While there has been an increase in the hours for which alcohol is available this has been incremental (for example, from 11pm to midnight for a local public house) rather than radical. Secondly, increased alcohol consumption and related problems including crime and disorder pre-date the Licensing Act 2003 (which did not in any event come into force until late 2005). A number of inter-related developments gave rise to an expansion of alcohol outlets, including those open to the early hours of the morning, in what has become known as the ‘night time economy’ with its attendant alcohol-related problems.





Chief among these is the abolition in 1999 of the ‘need’ criterion as a method of controlling the supply of alcohol. Put simply, in order to secure an alcohol licence for premises such as a new public house or off-licence it would have to be shown to the satisfaction of the licensing authority that there was a need or demand for the new outlet. For example, if in a town centre there were three public houses and a fourth wished to open, the applicant for the new licence would have to show that there was demand in that area for the new premises. This may be attempted, for example, by producing market research, possibly showing crowding at the existing premises, or by demonstrating how the new premises were to differ from existing outlets – perhaps aiming at a ‘family atmosphere’ or to be ‘food led’. Existing licence holders would often object to the granting of the new licence on the basis that there was no need for a new outlet in the area. They too may produce market research and call expert evidence to support their opposition to the new licence.

The need criterion, a central feature of licensing laws for at least 600 years, has been resurrected partly, by the government guidance which accompanied the 2003 Act and in the consultation document published by the coalition government in 2010, under the guise of ‘overprovision’ and ‘cumulative impact’ (see below).

2. Development of licensing law

Historically, in England and Wales, licensing provisions have sought to regulate the quality and price, manner of sale and availability of alcohol. The last of these, availability, is regulated in three ways: statutory control of licensed hours and persons permitted to purchase alcohol,

together with restriction of the number of outlets, through the mechanism of ‘need/demand’:

The policy of restricting the number of retail outlets for intoxicating liquor to the minimum regarded as necessary for the legitimate needs of the population is older than the licensing law itself, although its application by the licensing authorities, and its overt support by central government has varied considerably from time to time. (Home Office 1972, para.14: 295) The history is based on work done for an Alcohol Education Research Council funded research project (see Light & Heenan 1999).

Licensing history is characterised by successive moves between the tightening and the relaxation of controls (for a more detailed early account see Home Department 1932, Appendix 2, Webb & Webb 1963, Williams & Brake 1980). Many of the current debates on reform of the Licensing Act 2003 echo those that surrounded earlier statutes.

For present purposes, probably the earliest legislative provisions restricting the supply of alcohol are to be found in a late fifteenth century statute. This provided that two justices could withdraw from alehouses in their district permission to sell intoxicating liquor if they felt the alehouse was considered unnecessary. 4 This was followed by an Act in 1552 which introduced a statutory system for the licensing of alehouses;5 which still forms the basis of the present system.

Any two justices had full discretion in the issuing of new licences and a commonly cited reason for refusal was the existence within the area of sufficient licences to meet demand. Those licensed were required to enter into a bond for the maintenance of good order.

However, the end of the seventeenth century saw a relaxation of controls when in 1690 distilling, hitherto a monopoly of royal patentees, was thrown open (the retailing of spirits was free of all licensing requirements and attracted a very low rate of excise duty); and justices became less restrictive in issuing alehouse licences. The number of licensed premises multiplied rapidly and there was a huge increase in alcohol consumption. Gin shops and coffee houses (often gin shops under another name) flourished (for a graphic depiction see Hogarth’s ‘Gin Lane’) and regulation of the behaviour of licensees appeared to be virtually non-existent. It was not uncommon for gin to be given in lieu of wages or to be handed out free in chandlers and brothels. Gin shops advertised that their customers could get 'drunk for a penny, dead drunk for two-pence and straw for nothing' (An early example of ‘irresponsible retailing’).

As a result restrictions were introduced by an Act of 1729 6 but it was not until the second half of the eighteenth century that concern over the deleterious effects of alcohol consumption produced further statutory measures aimed at controlling the 'demon drink'; with increased supervision and control of licensed premises as well as increased excise duty.

However, consumption remained high, not surprisingly, as most of the measures were ignored and went unenforced. However, towards the end of the century both public attitudes to alcohol and the practice of the licensing justices began to harden. Much of this change has been attributed to a campaign against vice and immorality, led by John Wesley and William

Wilberforce:

Each county began to recognise that too many alehouses had been licensed which had become from want of regulation and supervision 'haunts of idleness', nurseries of sottishness' and 'seminaries of crime'. Benches resolved to grant no new licence but where the convenience of the public absolutely required it or until the present number had been considerably reduced. (Home Department 1932, para.37) Yet again, however, the early years of the nineteenth century saw this process once more reversed. In 1817 the Parliamentary Committee on the State of the Police in the Metropolis strongly recommended a free trade in liquor with no licensing controls. Public opinion backed the report. Under the Beerhouse Act 1830 justices lost their power to refuse a licence to a beerhouse. A householder could apply for a licence from the Excise at a cost of two guineas which would allow the sale of beer in the dwelling house for consumption both on and off the premises (‘Tom and Jerry shops’ as they were called). There was no need to obtain a licence, and the character of the person running the business was not taken into account. The number of

beerhouses soared:

Houses of this description sprung up in every corner of the land, by the roadside, in every city, town and village... have become the resort of individuals of depraved, 11 Henry VII c.2 (1494) 5&6 Edward VI c.25 (1552) 2 Geo.11 c.28 (1729) abandoned and desperate character, (who are) encouraged in but too many cases by the loose principles of those who have adopted this trade. (Bristol Journal, 25 October 1834) As Sidney Smith put it: 'The new beer bill has begun its operations. Everybody is drunk. Those who are not singing are sprawling. The Sovereign people are in a beastly state' (early ‘binge drinkers?). 'Indescribable orgies occurred, accompanied by gambling, brutal amusements and licentiousness' (see House of Commons 1833: 33).

However, in but a few years, the pendulum swung back again towards restraint. (Much

as has happened with the Licensing Act 2003.). In 1834, a Select Committee was appointed to:

…enquire into the Extent, Causes and consequences of the prevailing Vice of Intoxication among the labouring Classes of the United Kingdom in order to ascertain whether any Legislative Measures can be devised to prevent the further spread of so great a National Evil. (House of Commons 1834).

The Committee concluded that there were too many public houses and that spirits were too cheap and easily available (a commonly expressed view today – as is the notion that those causing alcohol-related disorder come exclusively from the ‘labouring Classes’). The report combined with pressure from the temperance societies led to the passing of the Wine and BeerHouse Act 1869 which brought beerhouses back into the licensed system. A number of Licensing Acts followed (most notably in 1872 and 1904) which imposed tough restrictions on the supply of alcohol.

The Victorian obsession with liquor and the work of the temperance movement saw the number of licences fall dramatically. The temperance movement found added support during the war years of 1914-18 for 'Drink is doing more damage in the War than all the German submarines put together' (Lloyd George in a speech on 28 February 1915). However, 'moderation' rather than prohibition was to be the key. This approach continued post-war, with

the Royal Commission on Licensing:



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