News: When a Section 161 Closure Order is inappropriate

  • Date: 26/05/2011
  • Source: Poppleston Allen
  • Author/Solicitor: Nick Walton



There has been increasing activity by the police in respect of closure or threatened closure of Premises for breaches of conditions sitting on the Premises Licence. In most cases, a Section 19 Closure Notice has been issued. This does not require the premises to close however there is an inference by the issuer that if the premises does not close, a prosecution for breach of Premises Licence conditions will follow.

Section 161 of the Licensing Act allows a senior police officer to issue a Closure Order in relation to a Licensed Premises selling alcohol if he reasonably believes that there is, or is likely imminently, to be disorder on, or in, the vicinity of, and related to the premises. The condition is qualified in that the closure is necessary in the interest of public safety. There is a second part to the section relating to Closure Orders which relates to a public nuisance being caused by noise coming from the premises and the closure of the premise being necessary to prevent the nuisance. Unlike a Section 19 Notice, the premises must close immediately.

One of our clients who operates an upmarket late night premises, recently refurbished, which has not created any problems for the police or other enforcement officers, had a Section 161 Order served on him.

Following an incident outside the premises which was quickly dealt with by a combination of door staff and police, a senior officer of the local constabulary returned some 30-40 minutes later and issued the Section 161 Closure Order on the premises. The effect meant that the premises had to shut immediately and remain closed for the duration of the order.

The effect of the Closure Order is to activate two different requirements:

1. The police are required to apply to a Magistrates' Court as soon as possible after the issue of an order to determine whether the Magistrates should extend the Closure Order or vary it by applying conditions that they determine.

2. Following that determination by the Magistrates Court, the matter must be referred back to the Licensing Committee for review. The Licensing Committee are required to reach a determination on the review no later than 28 days after the day on which the Licensing Authority is advised of the determination of steps taken by the Magistrates.

This piece of legislation however, requires that there is or is likely imminently to be disorder on or in the vicinity and related to the premises. If for example, the incident relating to the issue of the Closure Order is one where a gang has threatened to come back and lay waste to the premises then, as a means of upholding public safety, the police officer is justified in the issue of the order.

In my client's case, the incident which initiated the order had been resolved some 30-40 minutes prior to the order being issued. There was no 'imminent likelihood of disorder at the premises or in its vicinity' and the order, in those circumstances, should not have been issued. The District Judge, in deliberating whether the issue should be referred to the Licensing Committee for review, stated that:

1. There was no ongoing issue in respect of disorder;

2. There was no concern in respect of disorder occurring imminently on or in the vicinity of the premises;

3. The police officer issuing the order had, for whatever reason, delayed by some 30-40 minutes, when clearly there was no further link between the issue of the order and the incident that had occurred.

The District Judge determined to quash the order and advised that, in the circumstances, its use had been totally inappropriate.

Hopefully, the decision of the District Judge in this case will assist enforcement authorities in the future to give proper consideration prior to the issue of a Section 161 Closure Order. The elements for its issue are quite specific and, as the police are required to request a Magistrates Court hearing as soon as possible after the issue of the order, if it has been issued in the first place incorrectly then argument before the Magistrates can result in it being quashed.


For more information please contact Nick Walton