Powers of entry code explained

One recent legal development which may have missed your attention in all the other legislative changes is a new Code of Practice on Powers of Entry which finally came into force (after what seems years) on 6 April 2015. The Code provides guidance and sets out considerations that apply to the exercise of powers of entry including, where appropriate, the need to minimise disruption to business. It applies in a wide variety of sectors, including licensing, and therefore has relevance when the Police, Council Licensing Officer, or Environmental Health Officer arrive at your premises (either announced or unannounced) for a “visit”.

The Code is only 14 pages long and is worth reading in full. It has been produced to protect your rights, presented as it was to Parliament pursuant to the Protection of Freedoms Act 2012. Below are a few preliminary observations:

• The Code does not override specific statutory powers to conduct routine inspections or enter premises (for example, certain Police powers under the Police and Criminal Evidence Act 1984). In effect, therefore it is a safety net where there is no specific statutory Code of Practice in place.

The Code requires the following:

• A proper process for the authorisation and approval of the powers of entry;
• Generally, a “Notice of Powers and Rights” to be issued to the occupier;
• Advance notice – the Code recommends not less than 48 hours but only where this is “appropriate and practicable to do so”. However, notice is not required where pre-notification of a visit would defeat the purposes of exercising the powers. This may result in interesting discussions with the DPS on an unannounced multi-agency visit on a busy Saturday night to simply “check compliance with licence conditions”;
• Reasonable efforts should be made to obtain the consent of the landowner or occupier, unless of course this would frustrate the purpose of the exercise;
• Exercising the powers of entry should reflect what is reasonable and proportionate in the circumstances (see my point above);
• The exercise of powers of entry should only be undertaken at “reasonable hours”, judged by reference to the business in question. A late night visit might therefore be appropriate for a nightclub but not a café.
• Any seizure of property the occupier of the premises should be provided with details of the items seized, procedures relating to the retention of the property, how long the items may be held and any appeal and compensation procedures;
• The Officer/s should conduct the visit reasonably and courteously, being impartial and fair at all times.
• There should be a written record of the visit made after the powers of entry have been exercised.

It will be interesting to see how enforcement officers comply with this Code in exercising their powers of entry under the Licensing Act 2003. We would be interested to hear of any experiences of the Code being used in practice in future and will re-visit the details ourselves in later articles.