Legal advice: New laws on underage sales

An Order was made earlier this month which brings into force certain provisions of the Violent Crime Reduction Act 2006, part one of which gives increased powers to police and licensing authorities to tackle alcohol-related violence and disorder. The Order creates a new offence of "persistently selling alcohol to children".

From April 6, a person will be guilty of the new offence, and liable on summary conviction to a fine of up to £10,000, if alcohol is sold on the premises to a person under the age of 18 on three separate occasions within a period of three months. For this person to be guilty of the offence, he must be the premises licence-holder, or one of them, or the premises user, if the premises is operating under a temporary event notice. The person doesn't have to be the individual who actually made the sale to the minor - it is enough simply for the sale to have occurred on the premises.

As you are no doubt aware, selling alcohol to minors, and allowing the sale of alcohol to minors, have always been offences under the Licensing Act 2003, and the fact that two different offences exist enables the potential prosecution of both the person who made the underage sale and the person in charge of the premises at the time who 'allowed' the sale, whether it be the designated premises supervisor or another personal licence-holder.

New offence

The new offence has the effect of making it clear that the premises licence holder may be held responsible for any underage sales on his premises, even if he did not make the sale or if he was not present when the sale was made. This is something about which there is some doubt insofar as the two existing offences under the 2003 Act are concerned. Because both offence provisions refer to a 'person', it seems that they cannot be committed by the corporate premises licence holder. A recent prosecution by York City Council against such a company was dropped before reaching court when this was argued by the defence. The point was made that, where the premises licence-holder did not personally make the sale and is not a personal licence-holder (and, therefore, did not authorise the sale), the Act intended the personal licence-holder, rather than the premises licence-holder, to be guilty of the offence.

By contrast, the 2006 Order sets out in very clear terms that the premises licence holder may be liable for the particular offence of persistently selling alcohol to children, and this effectively closes that loophole.

Thus, the new provisions potentially put the premises licence itself at risk. They allow for sanctions in the form of suspension orders and closure notices. Where the licence-holder is found guilty, a court can make a suspension order which provides that he cannot sell alcohol under his licence for a maximum period of three months.

Closure notices

If a police officer considers there is sufficient evidence to give a realistic prospect of conviction, he can issue a closure notice, not to take effect for at least two weeks, which will prohibit the sale of alcohol for a maximum period of 48 hours in return for the officer discharging you of all criminal liability for the offence. The police cannot then prosecute under the offence of selling alcohol to minors in respect of those offences.

However, there is no requirement to accept the closure notice and the licence holder may exercise his or her right to be tried for it.

The licence holder has 14 days in which to decide and if he or she does choose to accept the closure notice, all holders of the premises licence must also accept an order for liability to be discharged, whether or not they were charged with the offence. Depending on whether the 48-hour period spans a weekend or coincides with a period during which takings are usually substantial, this 'exchange' may be preferable in order to avoid a criminal record and a substantial fine.

The defences to these new provisions are similar to those existing currently under the Licensing Act. The person who made the sale will have a defence if they asked the minor for proof of age and the minor produced proof which would have convinced a reasonable person, or if nobody could have suspected from the person's appearance that they were a minor.

The provisions of the Act introducing banning orders and alcohol disorder zones have yet to be brought into force. When they are, they will form the subject of a future piece.