Legal advice: Testing times for licensees selling to under-18s

Out of every £7 spent on shopping, £1 goes into the tills at Tesco. Unfortunately for the supermarket giant it seems some of this income has come from under-18s spending their pocket money on booze.

It has been reported that the licensing committee in Crawley, Sussex, has suspended the premises licence to sell alcohol at the Broadwater Street Tesco Express for 28 days following a review brought by Sussex Police.

While the Licensing Act 2003 relaxes the law in respect of children accessing licensed premises, it is as strict as ever the old Licensing Act 1964 was in preventing underage drinking.

Test purchases

In an exemption to the laws preventing entrapment, the police are permitted to carry out 'test purchases' by asking young people who are underage to attempt to buy alcohol.

It is therefore important to know what the law is to prevent either a prosecution, a review of your premises licence or, in the future, a closure notice.

I am sure that all licensees are aware that an offence is committed if alcohol is sold to an individual who is under 18. There is a defence, namely:

• a belief that the individual was aged 18 or over, and
• either that all reasonable steps had been taken to establish the individual's age or that nobody could reasonably have suspected from the person's appearance that they were under 18.

'Reasonable steps' include asking for evidence of age and being shown evidence that would convince a reasonable person.

It would appear that a prosecution brought against a premises licence-holder under this particular provision will not be successful if that person was not responsible for the sale.

A recent council prosecution against the premises licence-holder was withdrawn as a result of a particularly persuasive skeleton argument (a document which sets out the basis of the legal points to be raised at court) which argued that merely being the holder of a premises licence does not make you automatically responsible for underage sales.

The argument was that the premises licence-holder is only responsible for an underage sale if they are the personal licence-holder and/or the actual individual involved in the sale. This agreement succeeded as the council concerned dropped the prosecution!

It is also an offence 'knowingly' to allow the sale of alcohol on relevant premises to an individual who is under 18.

Both the offences outlined above carry a maximum penalty of £5,000 on summary conviction.

A new section has even been inserted into the Licensing Act 2003 which targets persistent selling of alcohol to those underage.

Now, if you fail three test purchases within three consecutive months, an offence is committed.

As with the offence of selling alcohol to under-18s, a defence exists if the person selling believes that the buyer was over 18 or that, through the examination of evidence, a reasonable person would have thought that the person was over 18.

Admissible evidence

The same underage sale cannot be used to convict someone of more than one offence. However, a conviction, formal caution or payment of a fixed penalty notice are all admissible evidence that previous offences have been committed and, on the third conviction, the maximum penalty can be £10,000 and a suspension of alcohol sales for up to three months.

It is not just a prosecution that you have to worry about. When Crawley's Tesco Express failed test purchases the police brought a review of the premises licence.

At a review hearing you risk the hours for regulated activity being restricted, your licence being suspended (as befell Tesco) or even revoked altogether.

Alternatively, when legislation is brought into force, trading standards officers or police will also be able to issue closure notices where there is evidence that alcohol is persistently being sold to under-18s. The effect of a closure notice is that it prohibits the sale of alcohol from a premises for 48 hours.

Given the numerous avenues available to the police and other authorities to ensure that persons under the age of 18 do not obtain alcohol, vigilance is essential.

If you are in any doubt about the person's age, it is best not to serve them. Many, if not most, operators have a 'Challenge 21' policy.

It is better to have a loss of profit of a few pounds if a prosecution, review or closure notice can be avoided.