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Volume 1: Security for the Arena
Volume 1: Security for the Arena (large format)

The licensing regime

Licensing Act 2003 framework

As set out in Part 2, SMG (UK) was the holder of a premises licence for the Arena granted by Manchester City Council on 9th September 2005, which contained a large number of conditions.161 Under the Licensing Act 2003 (the ‘2003 Act’), once a licence is granted it remains in existence unless and until it is revoked following a review or it is surrendered.162 Breaches of conditions are intended to be treated seriously. A breach is a criminal offence and can lead to a prosecution and a review of the licence.163

The power to grant and review a licence and impose conditions on a licence is vested in the licensing committee of the Council made up of elected representatives.164 Under section 4 of the 2003 Act, a licensing authority must carry out its functions with a view to promoting the licensing objectives. These include public safety and the prevention of crime and disorder.165 Section 182 of the 2003 Act requires the Home Secretary to issue guidance to licensing authorities on the discharge of their functions under the Act. Section 5 of the 2003 Act requires each licensing authority to determine and publish its policy with respect to the exercise of its licensing functions.

Considering the risks of a terrorist attack and requiring steps to be taken to mitigate it come within the licensing objectives. Therefore they are capable of being, and arguably should be, part of the consideration whether to grant a premises licence and, if granted, what conditions to attach to ensure the terrorist risk is kept to a minimum.166

That did not arise in the case of the Arena as the licences were first granted a significant period of time ago, under different legislation which was in force before the introduction of the 2003 Act.167 Prior to the 2003 Act, control of liquor licences was given to the local Magistrates, while public entertainment licences were the responsibility of the local authority. There was an automatic right, when the new Act was introduced, to convert those licences to the new premises licences. The existing conditions were simply carried over.168

As a result of requests for information made by the Inquiry, it has become apparent that, until now, consideration of the risk of a terrorist attack and requiring steps to be taken to mitigate that risk has not been part of the investigations made by local authorities before deciding whether to grant a licence and what conditions to attach. This may be starting to change following the events of 22nd May 2017, but it is something which would be difficult for local authorities to achieve on their own. Licensing authorities with the assistance of the police have always been concerned to try and ensure that an additional licence would not cause public nuisance or excessive drunkenness on the streets. Consideration has also been given to the risk of the sale of drugs on licensed premises but there has been little, if any, consideration of the attraction that large, popular licensed premises such as the Arena would present to a terrorist.169

If there are no representations received by a local authority, then they must grant the licence.170 While a local authority can make their own representations, they do not have the expertise to consider in detail counter-terrorism measures.171 Representations can be made by the police but, to date, it does not seem that the police officers or staff who consider licensing applications consult with expert counter-terrorism police officers, such as Counter Terrorism Security Advisors, before deciding whether to make representations.172 This is surprising as licensed premises have long been recognised as an attractive target for terrorist attacks.

Licensing enforcement

When the new Licensing Act was put before Parliament, the intention was said to be that it would be light touch regulation so far as the granting of licences was concerned, but there would be strict enforcement for those who breached the conditions of their licence.173 From the evidence I have heard about what happens in Manchester, I doubt that strict enforcement of breaches of conditions takes place in practice.

Manchester is meant to have 42 licensing enforcement officers, but they are never up to strength and, at the time of the hearings, they were eight short. Of those 42, there should be 21 in a city centre team and 21 in a city-wide team.174 Even if they were to have a full contingent, this does not allow them sufficient resources to do unannounced checks. They have to rely on intelligence they receive and liaison with a police licensing team, which is also small, to try and ascertain if there are breaches of conditions and take action.175

The evidence given at the Inquiry was to the effect that the licensing process in Manchester did not consider the risk of a terrorist attack in deciding whether to grant a new licence or what conditions to attach. It was also not considered as part of the compliance process. This is not surprising in light of the fact that government guidance published under section 182 of the 2003 Act is silent about the terrorist threat.176

That said, Manchester City Council in its own policy statement dated 4thJanuary 2016, has two paragraphs entitled ‘Working to prevent the threat of terrorism’.177 They read as follows:

“2.23 Terror attacks have previously been targeted at bars, pubs and nightclubs in the UK. All premises are expected to have regard to the NaCTSO publication ‘Counter Terrorism Protective Security Advice for Bars Pubs and Nightclubs’.

2.24 Licensed premises in the city centre are expected to be prepared in accordance with the City Centre Emergency Evacuation Plan.”

The NaCTSO publication referred to is extremely useful; but those two paragraphs do not indicate that there will be a careful consideration of the terrorist threat by a licensing committee when carrying out its functions.

While the Inquiry has not heard directly from other local authorities, the information we have received suggests that Manchester is not unusual in ignoring issues of terrorism when carrying out its licensing functions. As a response to the Attack, there are signs that this is changing, and some local authorities are considering whether and in what way they should take the terrorist threat into account.178 Manchester City Council has adopted a new policy and is intending to incorporate some of the requirements of Martyn’s Law into its new policy which will govern how it will make decisions in the future.179 I will consider Martyn’s Law in greater detail when I set out my recommendations in Part 8.

Monitoring of compliance with licensing conditions at the Arena

There were conditions on the Arena licence which were designed to protect the safety of the public. The evidence suggested that a number of them may have been ignored. It is not my role to reach conclusions as to whether there were licence breaches unless relevant to the Inquiry’s terms of reference. I have identified two breaches below which are relevant, the second of which may have contributed to the failure to prevent the Attack.

First, it was accepted that the statutory condition that required stewards at the Arena carrying out searching to have SIA qualifications180 had been ignored for many years, if it had ever been complied with.181 This was an important measure brought in by the government because of concern about the way in which some door supervisors in the licensed trade carried out their work.182

While the breach of that condition did not play any part in the events of 22nd May 2017, it does indicate a failure by SMG to have adequate regard to an important condition on the licence. There was also an absence of any knowledge of this breach by the licensing enforcement team, despite the fact that it had gone on for many years. I will return to this issue of SIA licences shortly.

Second, condition 86 of the premises licence provides that the minimum number of stewards as agreed by the local authority shall be provided to perform the functions and duties specified.183 The purpose of this condition is to ensure there are sufficient stewards and security staff to manage the crowd and monitor the area for threats. I was concerned to be told that an agreed minimum number could not be found. There was no evidence that there had ever been an agreed number.184

The Security Experts were of the view that the number of security staff on 22nd May 2017 was “sub-optimal”.185 Had a minimum number been agreed between SMG and the local authority, it may have been higher and the staffing levels would have been closer to the optimum number and more effective in identifying SA as suspicious.