Clock's ticking on fate of drinking up time'

It is still very difficult to predict with any accuracy exactly what will happen to permitted hours under the new regime.

As I commented last week, the intention of the Government is to remove the "flashpoints" with everyone leaving pubs and clubs at the same time. But what about the licensee who has a "closing time" on his operating plan? How does he stand, even under the current law?

It was, of course, a bid to civilise closing time that led to the introduction of a drinking up period in the first place. Interestingly, the actual phrase "drinking up time" is not mentioned anywhere in the Licensing Act ­ we have just adopted it universally as a description for the 20 minutes or so when it is still not illegal to finish your pint and begin the weary trudge home. In Scotland, of course, it's only 15 minutes, but they always were quicker than us!

But it's a widely misunderstood concession. In the first place, it isn't a right ­ it is entirely up to the licensee to decide whether or not he wants people to stay, and he can withdraw the concession at any time, simply by telling people to go home. So those who steadfastly refuse to leave are already in the wrong.

Secondly, at 11.20pm on a weekday, for example, the first person to commit an offence is the customer, not the landlord. There is no offence of "permitting" people to drink after time, but there is an offence of "consuming" after the drinking up period. So at 11.21pm a customer could, technically, be charged.

The only legal recourse against the licensee is the ancient charge of "aiding and abetting" the commission of an offence, which dates from the 19th century. But, of course, over the years the police have discovered that you do not need to prosecute the principal offender in order to bring this charge ­ you merely have to produce the required evidence that drinking was taking place beyond the concessionary period with the consent of the landlord.

This is the key point. To sustain a conviction, the police must show that the licence holder actually turned a blind eye or did little to discourage people lingering with their drinks. If the evidence shows that he was trying to get people to drink up, but was not having total success, previous cases show that the charge of "aiding and abetting" will not stick.

There will be those who steadfastly refuse to move, or the large groups who are having a good time and just do not want it to end. This, of course, is the classic scenario for reform. Why do you have to alienate your good customers by throwing them out when they would clearly like to stay for another hour or so? They are not rowdy, there is no disorder, your till is still merrily ringing, but the law says they must stop.

But you must make the effort. You have to stop selling at the terminal hour, of course, or you risk an even more serious offence. And you must not make off-sales during drinking-up time, however persuasive the customer might be.

If they have bought a carry-out from you or your staff during normal hours, then that has to be taken off the premises, by law, before the end of drinking up time.

If the police are outside and they see someone with bottles of beer or wine leaving at 11.30pm, they are entitled to assume that you sold it after the end of permitted hours, and they can charge the customers as well. It is then up to you to show that you complied with the law.