The Operator - To ban, or not to ban? That is the question

3 March 2011

How does the responsible operator deal with the ‘problem’ customer? The answer appears to be obvious; ban the customer from the premises. In this article, the writer suggests the answer may not be quite so straightforward and looks at the implications of the landmark decision in R (Boyle) v. Haverhill Pubwatch [2009] EWHC 2441 (Admin), a case concerning the amenability of Pubwatch schemes to judicial review.

Many operators working in the Licensing, Hospitality and Leisure industry have, in recent years, recognised the value of participating in their local pubwatch scheme. Such schemes are voluntary organisations of groups of like-minded individuals, often comprised predominantly of individuals working in the licensed trade. Their common goal is to work towards improving safety in a particular regional area. Their development is generally encouraged by the Police and local authorities, as they are considered to be valuable to building relationships between local licensed establishments to promote safe, secure and responsible social drinking.

One of the common features of pubwatch schemes is a process by which members will make collective decisions to ban individuals from their individual premises. Collective banning orders are seen as an effective way of sending a message to ‘trouble-makers’ that those who choose to behave in an unacceptable fashion will be uniformly refused entry to all licensed premises within a particular locality.

In the Haverhill case the application for judicial review was brought by Haverhill builder, Francis Boyle, following a decision taken by the participants of the Haverhill pubwatch scheme to extend by two years a ban imposed on him from all licensed premises taking part in the scheme.

The case considered an issue of crucial importance not only to the licensed trade, but also to local authorities and the Police who support and encourage the formation of local pubwatch schemes. 

JD Wetherspoon plc (Wetherspoon) joined the proceedings as an interested party to seek clarification of the circumstances, if any, where such schemes can be said to be exercising “functions of a public nature” and thereby making them amenable to judicial review. Wetherspoon recognised that the impact of a ruling that such schemes are susceptible to judicial review would have far-reaching implications for the licensed trade. In particular, it would mean that it would no longer be acceptable for a banning decision to be made simply on the basis of information provided by an individual licensee or the Police without first giving the person affected the opportunity to make representations and conducting the hearing and decision-making process on a much more formal footing. 

Stephen Walsh QC and Rachel Kapila of 3 Raymond Buildings and Kingsley Napley, instructed to act on behalf of Wetherspoon, sought clarification over what factors would need to be present before a local scheme would be characterised as operating as a public body.

The key principles to emerge from the judgment are:

  • Individual licensees have an unrestricted right to exclude anyone, particularly those who they see as ‘trouble-makers’ from their premises. 
  • Individual licensees have the right to exclude those whom others have found to be ‘trouble-makers’.
  • Individual licensees are entitled to formgroups or associations to pool information and discuss matters of common interest and make the exclusion of potential troublemakers more organised and systematic.
  • The only basis for an argument that such banning decisions are amenable to judicial review lies in the degree of involvement that public bodies, in this context either the Police or the Licensing Authority, have had in the making of that decision.
  • In considering what degree of involvement from public bodies would keep the operation within the private sphere, the Administrative Court would not expect that the operations of particular pubwatch schemes would be open to judicial review if the role of the public bodies were limited to that of advice and support as recommended by the ‘Good Practice Guide’ issued by National Pubwatch.

The Haverhill decision has brought some clarity to the issue of the factors that should to be taken into account when operators are making a decision on whether to ban a ‘problem’ customers from their premises.

If you want to safeguard against the decisions of your local pubwatch scheme being challenged in the Administrative Court, the best way forward is to follow the National Pubwatch ‘Good Practice Guide’ regarding constitution of the scheme and the role of public bodies. While assistance and encouragement from the Police and local authority should always be welcomed, operators must be alert to the fact that the scheme should remain at all times an independent, voluntary organisation, run by the participants, for the benefit of the participants.

Melinka Berridge

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