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Morning Briefing for pub, restaurant and food wervice operators

Wed 13th Sep 2023 - Legal Briefing

Drug prevention: how do we make the impossible possible by Leigh Schelvis

As we head into an unusually warm September and the twilight of the British summer, we also bid farewell to another brilliant music festival season. Much like previous years, the news headlines and industry conversations have been dominated by two key topics: the efforts to curb illicit drug use at festivals and the government policies on drugs. Figureheads in the music festival space and wider night-time economy have continued to be very vocal on the concept of drug testing at festivals and expressing the need for the government to modernise outdated drug legislation. This got me thinking about how the wider industry should be combatting illegal substance use in their venues and ensuring that customers are safe and staff are well supported.

With evidence of illicit drugs being used within all kinds of hospitality environments and not just temporary events like festivals, it is clearly a topic that needs to be properly addressed and considered if you are going to operate within the sector. Throughout the ages, society has always seen an element of drug use within social culture – it is not something new, despite the moral panics and outrage we often see. In the 1960s and 1970s we saw the use of marijuana and LSD, while 1990s acid house music brought the popularity of ecstasy in nightclubs and the iconic yellow smiley face.

Moving towards the present day, cocaine is quite frequently used in licensed premises. Even football games are not free from the concerns as health and behavioural researchers affiliated with the University of Stirling recently revealed a notable surge in cocaine usage among both spectators attending matches and the entities responsible for match safety. 

From the commentary provided by both the government and hospitality industry leaders, it is recognised that the presence of recreational drugs within our social scenes is likely to stay. While important figures in the sector may aspire to completely eliminate the use of illicit drugs or the improper use of legal substances (known as legal highs), achieving this as a long-term goal may prove to be an unreasonable task. At present, a strategy in dealing with illicit drug use appears to be one of damage limitation and harm reduction, as opposed to a total eradication. 

The primary piece of legislation that governs drug use in the UK is the Misuse of Drugs Act 1971, which is now more than 50 years old. Most would agree that it is outdated and does not deal with the challenges that a modern-day society faces, especially when considering hospitality sector environments and how much these venues, and their customers, have changed within that time. The war on drugs is an expensive battle, with a report issued by the Home Office Select Committee on Drugs revealing the sheer magnitude of the financial cost. Professor Dame Carol Black’s assessment revealed that the economic impact of the drug issue far surpassed £19bn annually, exceeding the widely held estimate of the illicit drug market’s value at approximately £9.4bn per year.

In terms of tackling the issue of drugs, this mighty task cannot be left solely at the door of the government and requires the co-operation of many interested parties, including our own operators within the sector. I need not remind you of aspects of the hospitality trade that drug use may impact. There needs to be a collaborative effort among sector stakeholders such as operators, licence holders, responsible authorities and even customers to unite to reduce the impact of drug use within this sphere. But it is important to keep the action to a reasonable measure as each stakeholder will have their own limitations. Quite often, we see licensing authorities and local police forces requesting that drug training and policy conditions be placed on premises licences, even where not directly related to an application. What this does is imply that these authorities want licence holders to “share” responsibility for battling drug use in their venues and the wider night-time economy as a whole.

Unfortunately, even the most responsible and well-run licensed premises are not immune from issues surrounding drugs, and so preventative measures must be taken. It is crucial that all operators, whether they manage single or multi-site establishments, and no matter whether their premises licence(s) contain this type of condition or not, make sure that their staff receive education and empowerment to address the issue of illicit drugs and harm reduction within their venues. This includes knowing how to respond when customers are caught using on drugs on the premises or when illegal substances are discovered, or even when to alert management to seek medical assistance. It is also vital that this training is refreshed at appropriate intervals, which is sometimes predetermined by a premises licence condition.  

Each establishment should consider crafting a customised drugs policy that aligns with the specific risks posed by drug-related issues at their premises. For instance, the risk assessment for a city centre late-night nightclub would differ from that of a restaurant, and both would vary from that of a suburban pub. This guidance could cover maintaining cleanliness on the premises, conducting regular toilet inspections, employing door supervisors, potentially implementing searches, keeping incident logs, having a process for seizing drugs and securing them for appropriate disposal. While the implementation of staff training and a drugs policy may not be mandatory requirements of the premises licence, they serve as valuable tools not only in combating the presence of drugs on the premises, but also as effective defences in the event of a premises licence review. 

There have also been discussions about whether there is a casual culture of “behind the bar” recreational drug use among staff in bars, nightclubs and pubs, which leads to a much more complex situation. If any staff member is found to be in violation of your drugs policy by failing to actively address drug-related concerns within the establishment, employers may need to consider taking action in accordance with your disciplinary policy. 

Unfortunately, a licensee who neglects to address a drug-related issue within their premises can face the risk of criminal enforcement action being taken and the potential loss of their premises licence. If the authorities discover customers using drugs on the premises, there is a real risk this could trigger a licence review, risking the closure of your venue, or strict(er) conditions being placed on your licence. Additionally, if the police have reason to believe that serious crimes or disorder are associated with the premises, this could result in a summary review of the premises licence. 

The appearance of drugs within society is unlikely to vanish, and while we can do our best to eradicate it, this goal just seems unachievable. However, with hospitality businesses setting the example, and leading by implementing polices, educating and empowering their teams to deal with the issue at hand and harm reduction, then maybe – just maybe – the impossible could just be possible.
Leigh Schelvis is a senior solicitor at John Gaunt & Partners

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