Be safe: monitor refusals to serve

The news story in last week's Morning Advertiser about Yates Group automatically monitoring refusals to serve, underlines what I have been saying for many years ­ keep a record of refusals, it will stand you in good stead if a prosecution is contemplated.

Increasingly in English law, the concept of "due diligence" has been used in order to assess the apportionment of blame at various levels of a company structure. This is true of a number of offences involving licensed premises, and the directors of new and re-styled operating companies would do well to examine carefully how the law is applied to them.

It isn't just licensing offences but other issues such as food hygiene where the phrase is really important. With larger operating companies having a complex pyramid of responsibilities, it may be that matters involving cleanliness of premises are delegated some way down the chain. It really depends on the attitude of the inspectors and the nature of the offence how far up the responsibility will be traced.

It is more likely that the prosecuting officer will content himself with charging the company and the individual manager with any offences, and allow the courts to impose a series of fines and the press reports to impose their own damaging local sanctions!

The licensing justices consistently remind incoming licensees of their legal responsibilities, and it is true that most licence-holders readily assume that they are first in the firing line when it comes to offences committed on their premises. However, they will also look to circumstances where they can escape blame if the action was someone else's fault and they had no responsibility for it.

If, for example, you give explicit instructions to your barman not to serve someone who looks under 18, and he goes ahead and serves a clearly under-aged child, you may be able to claim the benefit of the "escape clause" in section 169A of the Licensing Act when you are charged.

This states that where the holder of the licence is charged with selling to a person under 18 "by reason of the act or default of some other person" then he can advance the defence that he used all due diligence to avoid the commission of the offence.

You would have to be able to provide clear evidence that the instructions, whether verbal or written, were explicit enough to leave the employee in no doubt of his liabilities.