A0303 Procedure - Behave or be Banned Protocol (BOBB)

Number: A 0303
Date Published: 22 September 2022
Version 4 – September 2022

1.0 Summary of Changes

This procedure has been simplified by the inclusion of the salient parts of the preexisting protocol formerly accessible only via embedded links.
References to the sharing of data via paperwork have been replaced by reference to the digital storage application known as Disc (which has made various pre-existing forms, accessed by links in the procedure, redundant) and references to DIU inspectors have been replaced with reference to the information security team.

2.0 What this Procedure is about

This procedure has been in place since 2004 with significant revisions in 2008
following consultation with Legal Services and Data Protection.

The ‘Behave or Be Banned’ scheme (BOBB) is owned by the licensed trade and operated through local Pubwatch schemes in partnership with Essex Police.

It seeks to achieve the schemes objectives by banning individuals from entering licensed premises that have engaged in criminal acts in and around such premises, reducing opportunities for re-offending.

That individual licence holders or an association of them may exercise their right to ban an individual was restated by the High Court in R (Boyle) v Haverhill Pubwatch [2009] EWHC 2441 (Admin.).

This case also stated that a decision to exclude a person from one or more licensed premises may not be judicially reviewed save where if the police (or another public body) were involved in the decision making decision to exclude a person. For that reason members of Essex Police will play no part in this decision process.

This procedure details what support will be given to a pubwatch where it operates a banning process aligned to this protocol.

Premises may also ban individuals without following this protocol but where they do, Essex Police will provide no data to the premises or pubwatch relating to that individual.

This procedure outlines the key functions that Essex Police staff will undertake in pursuance of the activities of local Pubwatch groups within the terms of the Behave or Be Banned Protocol.

The agreed objectives of the scheme are to:

• Promote a safe and secure environment for customers within the night time economy on, or in the vicinity of or connected with licensed premises;
• Support the Licensing Objectives contained within the Licensing Act 2003:
  
  • Prevention of Crime and Disorder;
  • Public Safety;
  • Public Nuisance;
  • The Protection of Children from harm.
• Reduce the use of controlled drugs.

The scheme will be managed locally by Pubwatch. It will only apply to premises registered with Pubwatch and operated under the terms of the Behave or Be Banned Protocol. A sub-committee of at least three members will manage BOBB banning.

Premises wishing to join the scheme are to be advised to contact their local
Pubwatch.

Compliance with this procedure and any governing policy is mandatory.

3.0 Detail the Procedure

3.1 Purpose and Processes

The purpose of the B.O.B.B scheme is to prevent crime and disorder. For the
purposes of identification the police may provide details of the person’s name, age range, height range, any distinguishing marks and photograph.

Previously the scheme relied on paper copies circulated to pubwatch members. Since 2019 police data has only been shared via a secure IT application known as Disc.

Disc is a secure information-sharing system from Littoralis which is widely used by police forces and pub watches across the country to manage the banning of individuals from licensed premises and as an information sharing platform. Disc is accessible via Disc Desktop and the Disc smartphone app.

Essex Police and Littoralis have entered into a data processing contract and individual pubwatch members are required to enter into and conform to an information sharing agreement to access the platform. This is to comply with our obligations under the Data Protection Act 2018 and General Data Protection Regulations (GDPR).

The sharing of data, outside of the Disc platform, under the auspices of this
procedure is prohibited.

Each pubwatch using DISC must register with the Information Commissioner’s Office.

All licensed premises wishing to become members of the B.O.B.B. scheme will be required to digitally sign a Membership Agreement (on Disc) which incorporates a confidentiality clause. A member is defined as a business which has signed an agreement to abide by the B.O.B.B. protocol and rules of the Pubwatch. On signing this agreement, members agree to abide by decisions made by the sub-committee and most importantly uphold the principle of ‘Banned from one premises means
banned from all’ by enforcing the banning notices.

The Pubwatch will establish a sub-committee to oversee the scheme, consisting of at least three members who will decide on behalf of the whole membership whether to exclude those troublesome persons to achieve the stated objectives. The sub-committee will meet when required and in decision making a simple majority vote will determine a decision.

The police will only attend a sub-committee meeting at the request of its members to provide impartial guidance, advice, information and support as necessary.

The scheme has been developed to prevent the following persons from entering the premises of B.O.B.B. members:

• Persons having been given a Penalty Notice for Disorder (PND), a Caution, Reprimand, Formal Warning or Charged with offences involving:
  a) Acts of Violence - An offence under the Offences against the Person Act
  1861 and Common Assault (Criminal Justice Act 1988);
  b) Causing criminal damage;
  c) An offence under the Public Order Act 1986;
  d) Possession or supply of a controlled substance;
  e) Possession of an offensive weapon.

3.2 Banning Notice

An official member of the scheme may nominate a person to be banned for the subsequent consideration of the sub-committee. The nomination should reflect the specific objectives in Section 2 of this Procedure. The nominating member should not form part of the sub committee adjudicating the outcome or any subsequent appeal.

The Banning Notice is a matter for the Pubwatch sub-committee to consider.

Where a decision is made to implement a Banning Notice, the Pubwatch sub committee will forward a copy of any notices to the local police licensing officer to enable the notice to be forwarded to the banned individual and for Athena PIR completion.. Any ban cannot exceed 2 years unless it is a lifetime ban (though any police supplied data will be removed at the 2 year period).

The sub-committee may then request data from the police licensing officer, whom will consider whether the release of the data is justified and proportionate for the purpose of the prevention of crime and disorder.

Any data released will be made available solely via the Disc system and an
individual’s address will not be provided.

3.3 Right of Appeal

All persons issued with a Banning Notice by the sub-committee will have a right of appeal. The responsibility for correspondence rests with the relevant Pubwatch committee: however to protect the anonymity of members the Police MAY administer this process on the written authority of the Pubwatch.

The Full Banning Notices detail this right of appeal. The appellant will be instructed to write to the committee providing the grounds upon which their appeal is being made.

The appeal should be addressed c/o the local police licensing officer to avoid
identification of sub-committee members and any possible confrontation.

Any notice of appeal will be acknowledged and written details will be provided of when the appeal will be considered by the sub-committee.

If the appeal is successful and the Banning Notice is cancelled, all members and the appellant will be informed as soon as possible. Notification of the outcome of the hearing will be provided to the appellant in writing. The notification will highlight the fact that regardless of any outcome of appeal that individual members still have a common law right to refuse admission and some may exercise that right.

Likewise, if the Banning Notice is upheld the appellant will be informed as soon as possible.

3.4 Breach of a Banning Notice

Officers should bear in mind that the breach of a banning order is not a criminal offence and therefore does not carry a powers of arrest. Officers called to attend an incident involving an alleged breach should seek to rely on powers available to them within Section 143 of the Licensing Act 2003 and in particular to the duty to assist imposed by Section 143(4). These powers are only available where the offender is considered to be drunk and disorderly.

Attending officers must refer the circumstances of the incident involving the breach of a banning notice to the nominated liaison officer for further consideration by the Pubwatch sub committee.

3.5 Release of Police Information

When a Pubwatch sub-committee has decided to ban a person under the BOBB Protocol only the following information will be disclosed to the BOBB Sub Committee.

• Date, time and the location where the incident took place;
• Full details of the offender provided they have received a penalty notice for disorder, caution, reprimand or warning or charged to appear before a local court;
• Details of any injuries caused to a victim or witness excluding their full personal details;
• Details of any damage caused to an individuals property together with an estimated value but excluding their full personal details or any information from which their personal details could be obtained e.g. vehicle registration;
• A photograph of any offender who has received a PND, caution reprimand or warning or who has been convicted before a court.

Where the offender has not received a PND, caution reprimand or warning nor
been charged with an offence to appear in court no information will be released.

The nominated officer must consider each element of the information to be disclosed and satisfy themselves that the release of the information in necessary for:

• The prevention and detection of crime; or
• The apprehension or prosecution of offenders; and
• That it meets the criteria set out within the protocol.

Photographs will only be supplied to assist in the identification of an individual subject to a Banning Notice. All photographs will be supplied using via Disc with an expiry date, no later that the expiry date of the Banning Notice to which the photograph applies.

Once the banning notice expires police licensing officer will be responsible for
ensuring any data not automatically deleted is removed from the Disc application

Information will only be supplied in the following circumstances:

• The incident giving rise to the request was originally reported to the police;
• The criteria set out the protocol are met in full; and
• The disclosure is necessary for the prevention and detection of crime or the apprehension or prosecution of offenders.

In all other circumstances the request will be refused by the police licensing officer and an explanation provided to the applicant supporting the refusal.

3.6 Breach of Information Security and Expulsion from the Scheme

Any breach of the agreed protocol will be noted by the nominated liaison officer on the Bacchus database and will be dealt with by way of a remedial discussion with the member concerned. Where police supplied data has been inappropriately shared the matter should be immediately discussed with a member of the information security team and if appropriate a Form PFL001 (data security breach) should be submitted.

4.0 Equality Impact Assessment

EIA – September 2022 currently out for consultation

5.0 Risk Assessment

Risks in relation to this procedure relate to data security in support of the initiatives set out by Pubwatch in their Behave or Be Banned Protocol.

This protocol details the arrangements that need to be in place before data controlled by Essex Police can be formally released to members of the Pubwatch Scheme.

6.0 Consultation

The following have been consulted during the formulation of this document:

• Licensing Officers
• Diversity Unit
• Unison
• Health & Safety
• Federation
• Information Management

7.0 Monitoring and Review

This procedure will be reviewed every 3 years to ensure that it remains consistent with current legislation.

8.0 Governing Force policy.

Related Force policies or related procedures

• A 0300 Policing - Licensing

8.1 Data Security

Essex Police have measures in place to protect the security of your data in
accordance with our Information Management Policy – W 1000 Policy – Information Management.

8.2 Retention & Disposal of Records

Essex Police will hold data in accordance with our Records Review, Retention & Disposal Policy – W 1012 Procedure/SOP - Records Review, Retention and Disposal.

We will only hold data for as long as necessary for the purposes for which we
collected. Victims/public should be reminded that Essex Police take the protection of personal data seriously as described in the privacy notice.

9.0 Other source documents, e.g., legislation, Authorised Professional Practice (APP), Force forms, partnership agreements (if applicable)

• Form A 0601 – B.O.B.B. – Banning Notice (to be amended as necessary and used only for Full Bans)
• Form A 0601a – B.O.B.B. – List of member premises
• Form A601b – B.O.B.B. – Application by BOBB Committee/Member of Pubwatch to the police for release of info
• Form A601c – B.O.B.B. – Release of Info continuation sheet
• Form A0601d – B.O.B.B. – Full Banning Notice
• Form A480 – Report of Information Security Breach
• Behave or Be Banned Protocol