On 2 May 2023, the Government released the Terrorism (Protection of Premises) Draft Bill, otherwise known as ‘Martyn’s Law’, named in memory of Martyn Hett who was killed in the Manchester Arena Attack 2017. The Bill outlines the counter-terrorism activities required for events taking place at certain venues and was drafted in recognition of that fact there are currently no mandatory requirements for premises to consider and mitigate terrorist threats.
The ‘Persons Responsible’ for a qualifying public premises or a qualifying public event will be subject to the terrorism protection requirements set out in the Bill.
S5(1)(a) of the Bill defines “Persons Responsible” as the person who has control of the premises in connection with their relevant Schedule 1 use.
The Bill splits the definition of “qualifying public premise” into two tiers:
• Standard duty premises - those with a capacity of 100-799 individuals.
• Enhanced duty premises - those with a public capacity of 800 individuals or more
The requirements will not apply to premises (or parts thereof) that are used as private dwellings or offices.
The Bill defines “Qualifying Public Events” as public events held at premises that are not qualifying public premises, where express permission is required to enter for the purpose of attending the event (with or without payment) and where the event has a capacity of 800 individuals or over.
The requirements that apply to enhanced duty premises will also apply to qualifying public events.
The public capacity of premises and events are determined in line with the regulations and made by the Secretary of State.
The Persons Responsible for standard duty premises will be required to undertake low-cost activities which seek to improve security and preparedness. These activities will include the following:
• Staff terrorism protection training. This will include having free terrorism materials to educate different threat levels posed by terrorism and the action that personnel should take in response;
• Having an appointed designated senior officer for the premises or event;
• Complete and regularly review their terrorism risk assessment. In completing the assessment they will have to consider what types of terrorist attack are most likely to occur at or around their premises or event, and the “reasonably practicable” measures that might be expected to reduce risk of such an act occurring, or the risk of physical harm to individuals as a result of such an act;
• Must implement security measures to reduce risk of any harm caused by terrorist acts. These security measures include maintaining a security plan, which must also be provided to the regulator. Other persons who have any extent of control over a qualifying public premise or qualifying public event, will be under a duty to co-operate with the person responsible for the premises or event under the Bill;
• Persons responsible for both standard and enhanced duty premises will also be responsible for ensuring premises are registered with the regulator and must give notice to the regulator ahead of any event.
The Bill proposes the introduction of a new regulator who will have powers of inspection and enforcement to ensure compliance with the various duties contained in the bill.
The Bill will provide the ability for the regulator to impose a range of civil and criminal sanctions to be used to address non-compliance, with criminal sanctions reserved for the most serious of offences.
The regulator will also have the power to issue a ‘Contravention Notice’ or ‘Restriction Notice’.
Contravention Notice - requires the person in breach to take specific steps, within a time period, to comply with the notice and provide evidence of the same.
Restriction Notice - restricts the Responsible Person from carrying out certain activities and can restrict premises to the following:
• Specifying the purposes for which a premises may be used or must not be used;
• Specifying the times at which the premises may be used or not be used;
• Specifying a description, or maximum number, of members of the public who may be permitted access to the premises, or permitted access at specified times;
• Specifying conditions which must be complied with if the premises are used, or are used for specified purposes or at specified times.
Note that there are stricter rules around when a regulator can issue a Restriction Notice in contrast to a Contravention Notice.
The regulator will also be able to issue civil monetary penalties. For standard duty premises, the penalty is fixed up to a maximum of £10,000. However, for enhanced duty premises and qualifying public events, the maximum fixed penalty of the higher £18m or 5% of worldwide revenue.
It will be a criminal offence to fail to comply with a contravention notice, unless it relates to a standard duty premises or a restriction notice. It is also a criminal offence to provide false or misleading information in compliance, or purported compliance, with a requirement of the Bill.
Where a person has been charged with an offence, the burden of proof is on that individual to prove beyond reasonable doubt that they took all reasonable steps to comply with the notice and have the evidence of the same. This is known as a reverse burden of proof which is uncommon in criminal law, where the onus is ordinarily on the prosecution to prove every element of the offence. However, it is similar to that which is found within the Health and Safety at Work etc Act 1974.
The regulator also has investigatory powers under the Bill. The Bill seeks that inspection activity is not hindered by obstruction or non-compliance with an inspector exercising their powers lawfully. The Bill also includes criminal offences for failing to comply with an information notice and obstructing an inspector, along with any person who pretends to be an authorised inspector with intent to deceive.
The Bill recognises a gap in the protection of public safety and its creation alone is a step in the right direction for closing this gap. However, it is to work in practice and how the regulator will investigate and impose its requirements is yet to be seen, but its existence makes clear that this is an area the Government is taking seriously and in turn, the Persons Responsible need to be taking seriously as well. What is clear is that duty holders should be reviewing their requirements now and putting in place the necessary measures to ensure compliance once the Bill comes into force.
If you would like any help or advise complying with Martyn’s Law, or have any relating enquiries concerning health and safety please contact Ian Manners (Partner) at i.manners@ashfords.co.uk.
This article was written by Gemma Sparks (Solicitor Apprentice)
