Published: 26 March 2021
It is important that all front of house staff are aware that the following offences exist under the Licensing Act 2003 in relation to the sale of alcohol.
NB: There is also an offence of purchasing of alcohol by an under 18 year old. This means that it is no longer legal for 16 and 17 year olds to purchase an alcoholic drink for consumption along with a meal. Under the Licensing Act 2003 an adult accompanying them must buy the drink for them but it is still legal for them to consume it with the meal as before. This relates only to beer, wine and cider.
The most frequently committed offence is the first one of selling alcohol to someone under the age of 18. It is really this offence that is being concentrated upon by the enforcing authorities. Nonetheless it is important to be aware of the others! Most of the offences require actual “knowledge”, therefore a direct involvement in the offence. For example, the Designated Premises Supervisor might instruct a member of bar staff that it is fine to serve a particular individual who is asking for a drink. If that individual turns out to be under 18 then the DPS has knowingly allowed the sale. The element of knowledge does not relate to the age of the individual who was served, only the act of selling. Equally, if you have an outside area which forms part of your licence you need to make sure that a person under the age of 18 is not sitting out there consuming alcohol which has been bought for them by someone else. The knowledge element might be proved by the fact that you knew that the individual was there regardless of whether or not you knew what age they were and you might be guilty of allowing consumption.
In the alternative, if your outside area does not form part of your licence, you might be accused of knowingly allowing delivery of alcohol to an under 18 year old if you sold to an adult who subsequently provided it to the person under 18 in that outside area.
Home delivery is also a problem for off licences. It is an offence to knowingly deliver alcohol to someone under the age of 18 and the seller will have to be very careful that the purchaser’s age is checked. There is an exception, however, whereby an under 18 year old may take delivery of alcohol at their home address or place of work if they are only accepting delivery on behalf of an over 18 who has been sold the alcohol.
Police and Trading Standards Officers are being provided with funding to actively enforce the law in relation to selling alcohol to children. They will carry out test purchasing exercises where they send children into the premises to see if they can get served. It is therefore imperative that staff are fully aware of their responsibilities and that they challenge for identification where appropriate
Any staff member who serves alcohol to someone under the age of 18 has a defence if they have asked for identification and that identification was not obviously false. As it is difficult for members of staff to accurately judge people’s age, a Challenge 21 (or 25 as appropriate) policy should be adopted whereby all staff are to ask anyone who appears to be under the age of 21 (or 25 as appropriate) to produce identification. If the identification cannot be produced then the customer must not be served. Notices to this effect should be displayed around the premises for the benefit of both staff and customers so that everyone is clear on the policy (examples provided).
In requesting identification from customers sellers should be aware that only the following should be accepted as forms of identification:
For detailed guidance please access the PASS website: www.pass-scheme.org.uk
The legislation provides for a due diligence defence to be available to a DPS or Personal Licence Holder who may be held responsible for the sale due to their status even though they had no direct involvement in the sale itself. This may also apply to Premises Licence Holders to whom the same defence would also be available.
Due diligence essentially involves doing everything you can possibly do to prevent the offence happening. This means giving staff members the necessary knowledge and training to ask for identification and to refuse service in the event that it cannot be produced. Training records are therefore imperative to show that the necessary knowledge has been imparted.
Another important part of due diligence is to raise awareness of the issue generally by the placing of prominently displayed posters around the premises advertising the Challenge 21 (or 25) policy. This makes both staff and customers aware of what is going on. It reminds staff to ask for identification and makes it easier for them to explain to customers why they are doing it.
NB: It may also be worthy of note that a new Code of Practice on Age Related Products came into being in February 2013. It covers alcohol amongst a large number of other Age Restricted Products.
The Code makes no difference to the offences under the Licensing Act.
It essentially encourages a more partnership driven and educational approach to the issue of underage sales. For operators who have premises in various Local Authority areas it is interesting that they are able to seek “primary authority approval” for their due diligence systems. This means – in theory – that if one authority has approved the training and measures in place to prevent underage sales then another authority should accept them. It will be interesting to see over time what effect the Code will have in practical terms.
Another essential tool is the refusals’ register. This requires staff to record details of any occasion on which they refuse service. The time and date should be recorded together with a brief description of what happened. The description could simply be ‘ID requested as appeared under 21 (or 25). Customer had no ID.’ Clearly if the customer is willing to give their name then that could also be recorded but in reality most will probably not.
The importance of the refusals register is twofold. Firstly, it may enable you to demonstrate to a police or Trading Standards officer that a particular member of staff who has made a sale to someone under the age of 18 has a proven history of refusing service on a regular basis. Secondly, it enables the management at the premises to review the register on a regular basis to make sure that all staff members are refusing service. This would then satisfy the manager that staff have understood and are following their training.
All of the above will assist in establishing a due diligence defence. However paperwork is only paperwork. It is imperative that management keep the issue alive within the premises by constantly monitoring what staff are doing and leading by example. The issue should be raised at staff meetings and minutes taken. By keeping the issue alive you minimise the chances of having to rely on the documentation at all!
If a sale nonetheless occurs then it is possible that this may be dealt with by way of a fixed penalty notice rather than a prosecution. This is normally in the sum of £90 payable within 21 days. If a fixed penalty notice is issued it should be accepted by the seller and then legal advice taken on whether to actually pay the penalty or not.
Payment of the penalty does not involve any admission of responsibility nor does it attract a criminal record. It is possible, however, that the police may seek to take the recipients’ fingerprints, photographs and DNA.
It is open to the Police or Trading Standards to consider prosecution for an underage sale rather than dealing with the matter by way of a fixed penalty notice. The Police normally ask for voluntary attendance at an interview under caution. This applies to either an individual who has made the sale or indeed the Personal Licence Holder or the Designated Premises Supervisor. Legal advice should be immediately sought in the event that an interview under caution is to take place. If you are prosecuted then the maximum fine is unlimited and you will have to tell the Court that you are a Personal Licence Holder (if relevant) and your licence might be forfeited. You will also attract a criminal record which would have to be subsequently disclosed on job applications, visa applications etc.
The final possibility is that a formal caution may be offered. This does form part of a criminal record but is not as serious as a conviction. It may have to be disclosed on job application forms depending upon how the question is worded. This normally also follows a visit to the police station and an interview under caution. If the police decide to prosecute or issue a formal caution they may then seek to take fingerprints, photographs and DNA. Not a pleasant experience!
The most potentially costly offence is that of persistently selling alcohol to under 18s. It targets the Premises Licence Holder rather than the individuals who make the sales. An offence is committed if two underage sales take place at given premises within a three month period. The Police will simply have to show that there has been a fixed penalty notice a formal caution or a conviction for two or more offences. There does not seem to be any available defence for such proceedings. All a Premises Licence Holder can do is try to minimise the penalty by arguing that there are good systems in place to try to prevent such sales occurring (the importance of good due diligence systems is therefore paramount once again!).
The maximum fine for the new offence is now unlimited and Magistrates have the option to order up to three months suspension of alcohol sales at the premises. In the alternative, the Police may ask the premises to close voluntarily for a period of up to 14 days to avoid being prosecuted. The police will choose the period, which is likely to include a weekend or a Bank Holiday weekend. Either way it is not good news!
NB: As with all offences under the Licensing Act 2003 it is technically possible for a company director to be prosecuted if it can be shown that the offence was committed with his consent or connivance or due to neglect on his part. Whilst it is highly unlikely that such proceedings would be brought, it is nonetheless important to be aware of this possibility.
As if all of that wasn’t bad enough…
There is always the possibility of review of the Premises Licence. This has already been happening in some areas as a result of even one underage sale and certainly following two or three. On review the licensing committee has a wide range of powers including curtailing your hours, removing the DPS or, indeed, revoking the licence!
For the individual
For Premises Licence Holder/DPS/ Personal Licence Holders
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