Active not passive role in smoking ban
The consultation period on regulations for smoke-free premises has just ended and submissions have been made by the trade bodies on a number of issues.
Recent history shows, however, that Governments are not good at turning a listening ear to objections at this stage and tend to go, more or less, with their own proposals.
Licensing was a classic case, where virtually none of the representations made during the consultation period was adopted. I rather fear the same will be true on the smoking issue.
At the time of consultation, we already had an Act rather than a Bill, so there is no opportunity to change the substantive law at this early stage. Which is why I am surprised that two of the associations have lobbied to change the principal offence of "failing to prevent smoking in a smoke-free place".
They want it amended to an offence of "knowingly allowing" smoking, in line, it must be said, with other offences which have been around in the licensing laws for many years.
Well, that was not what the consultation was about, and they must know that Section 8 of the Act has received the Royal Assent, so it will not be changed now. So it is important to recognise that the new law places two specific duties on the licensed trade in respect of the smoking ban:
1. A duty to make sure that no smoking signs are placed in the premises in accordance with the regulations (consultation).
2. A duty to "cause a person smoking (in the premises) to stop smoking." (The Act).
The time for argument and discussion about the wording of the second duty (and it is certainly debatable phrasing) was during the passage of the Bill, not now. The main question for licensees is: how and to what extent do you cause a person to stop smoking?
The Act does assist in this respect, by
providing three specific defences to any charge brought under Section 8, which will be familiar to those who have dealt with legal issues concerning sales to minors and other licensing offences, particular after-hours
consumption.
The first defence is that the accused took all reasonable steps to cause the person in question to stop smoking. Of course, the Act does not define what "reasonable" is, but it will not involve force or a large bucket of water! It
must be a specific instruction, or order, preferably heard by others, to the errant customer which he then defies.
The second defence itself covers the 'knowingly' issue raised by the trade. If you can show that you did not know someone was smoking on the premises, the onus moves to the prosecution to demonstrate that you turned a blind eye (or nose) to the offence.
The third defence is a head-scratcher: "on other grounds it was reasonable for (you) not to comply with the duty." We shall have to wait and see when and by whom this particular defence is run.
The really important aspect of the section is that once the court has evidence that raises one or other of the defences (such as a witness to the instruction to the smoker), then the court must assume that the defence is satisfied "unless the prosecution proves beyond reasonable doubt that it is not".
So it's likely that prosecutions will only be launched on the clear evidence of complicity with smokers or defiance of the ban - not on catching one covert smoker who lights-up when the landlord's back is turned.
The maximum fine level is currently pitched quite high, but is unlikely to be achieved in the magistrates' court. It is clear that the Government wants operators to "police" the new law for them, which is why the Act is worded the way it is.
