Posted: Friday, 25 January 2013 @ 12:09
What are the offences?
1. It is a criminal offence for any person to sell alcohol to someone under 18, wherever the sale takes place. There are no exceptions. The maximum fine on conviction in a magistrates’ court is £5000.
2. In licensed premises, it is a criminal offence knowingly to allow the sale of alcohol to someone under 18. The offence includes anyone working at the premises in a capacity that would have allowed them to prevent the sale. The maximum fine on conviction in a magistrates’ court is £5000.
3. It is a criminal offence to persistently sell alcohol to persons under the age of 18. Persistent means sale of alcohol to someone under 18 on 2 or more different occasions within a 3 months consecutive period. The maximum fine on conviction in a magistrates’ court is £20,000, and the Premises Licence may be suspended fro a period up to 3 months.
The police have alternative measures they can use in place of prosecution. They can issue Fixed Penalty notices (£80) to whoever sold the alcohol, or permitted the sale. This is their normal first step. They rarely prosecute in the magistrates’ court unless the circumstances are particularly bad. And of course an individual will always take the hit of a fixed penalty rather than challenge it in the magistrates’ court because if they lose not only will the penalty be significantly higher, they will also then have a criminal conviction, may also lose their Personal Licence, or if they do not have one make it impossible to get one in the future. The police are well aware of this.
Where there are “persistent” sales which satisfy the 2 in 3 consecutive months criteria, the police have an alternative to prosecution. They can serve the licence holder with a closure notice and can ask for a closure of up a maximum of 336 hours (14 days). Again many will surrender to such a demand rather than risk a criminal conviction, fine of up to £20,000 and closure of up to 3 months anyway.
Of course even if there are “persistent” sales which do not satisfy the 2 in 3 consecutive months criteria, the Police can still apply for a review of the Premises Licence or Club premises Certificate. Recently in Swindon the police took at least 3 premises to review where there was a 2 ½ year gap between test purchase failures, and in between the premises had passed 3 test purchases. That is rather stretching the definition of “persistent” sales, but some forces appear to have a minimum tolerance policy.
Defences: there are only limited defences avalibale in a magistrates' court to a charge of selling alcohol to someone under 18. The prosecution need only prove that a sale of alcohol took place and that the purchaser was under 18.
To escape conviction:
1. you must have believed they were aged 18 or over, and
2. you must either have taken all reasonable steps to establish their age, or prove that no one could have reasonably suspected from their appearance that they were under age. Obviously it would be dangerous to rely on this last defence as the girl who looked 25 when served will most likely appear in court without make-up.
To establish “reasonable steps” you must have asked for their age and been provided with evidence of that age which would have convinced a reasonable person. You must therefore have seen identification evidence which was not obviously forged and which included a photograph looking very much like the person involved.
What you should do:
Firstly, be aware of the statutory requirements for holders of Premises Licences and Club Premises Certificates.
As a minimum they must ensure that an age verification policy applies to the premises covering the supply of alcohol. This is one of the mandatory conditions in the Licensing Act 2003. The Home Office have produced an example, click here to see it.
The policy must require that individuals who appear to the "responsible person" to be under 18 (or any older age specified in the policy), produce on request identification bearing their photograph, date of birth, and a holographic mark. A "responsible person" means the Premises Licence holder, the DPS, or anyone authorised by them to sell alcohol. For a club with a Club Premises Certificate it is the person on the premises with the capacity to supply or prevent the supply of alcohol.
Of course many licences have far stricter conditions endorsed on the licence, either as a result of voluntary inclusion when they were applied for or formally varied, or as a result of a hearing following representations or a formal review by the licensing authority.
Secondly, minimise the risk of selling alcohol to under 18s by adopting a 3 point plan:
1. Prepare the mandatory written policy on measures to prevent sale of alcohol to under 18’s with an appropriate age to match your customer profile. High risk premises should consider at least a challenge 25 policy, and maybe a challenge 30. Limit the number of ID cards acceptable to you, to say passport, EU Driving Licence Card, and a PASS accredited card.
2. Staff training on the policy should be thorough, repeated regularly, and recorded.
3. A refusals book should be kept as evidence of use of the scheme.
I appreciate that the trade feel very much on the front line when it comes to under age sales, and that in a high pressure environment it is almost impossible to avoid mistakes. Unless and until a “no ID no sale” approach is part of licensing law it will continue to be a battle ground with casualties.
Licensing Law Specialist
Tel: 0845 003 5639
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
This blog is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free telephone consultation
to discuss your particular circumstances.