Legal advice: Avoiding underage sales

On May 4 2007 the Alcohol Misuse Enforcement Campaign 5 (AMEC5) commenced. The campaign is due to run for a period of 10 weeks targeting approximately 3,000 licensed premises in the on and off-trade up and down the country that have been identified by local police and enforcement officers as being 'high risk'.

In view of the campaign, it seems appropriate to revisit the law in relation to children in licensed premises.

The current campaign will target the premises identified by conducting three consecutive test purchases. Should a premises pass all three then it will not be targeted again during the current campaign. Any premises failing one of these test purchases, whether it be failure on the first, second or third time, will be targeted with further test purchases, up to a maximum of five. Managers of licensed premises or the designated premises supervisor or licence-holder will be notified whether there is a pass or fail in any of the test purchases.

New powers under the Licensing Act 2003

As we reported in an article earlier this year, the Violent Crime Reduction Act 2006 introduced a new Section 147(A) to the 2003 Licensing Act. The new section gave additional powers to the police or trading standards officers where a premises failed three consecutive test purchases in any three-month period starting from April 2007.

Section 147(A) of the Act states: "A person is guilty of an offence if on three or more different occasions within a period of three consecutive months alcohol is unlawfully sold on the same premises to an individual aged under 18."

The new section does not provide a defendant company with a 'due diligence' defence, unlike Section 146 where a company can avail itself of such a defence in circumstances where it is prosecuted and can demonstrate that procedures were in place (which it would be reasonable to expect would be in place) to ensure staff did not sell alcohol to minors and those measures were implemented.

By contrast, under Section 147(A)(2) of the Act the only defence available is to show that the person making the sale had reasonable grounds for believing that the individual was 18 or over. In order to invoke that defence, the person in question would have had to have asked for proof of age and on production of such proof, must have been convinced that it was authentic identification or that the person could not have been suspected of being under 18 from their appearance.

A prosecution can be brought under either Section 146 or 147(A), but not both. An offence under Section 147(A) carries a fine of up to £10,000. In addition, if the holder of a premises licence is convicted under Section 147(A) the court may order that the sale of alcohol be suspended for a period of three months.

Closure notice for persistently selling alcohol to children

Section 24 of the Violent Crime Reduction Act 2006 also creates a new Section 169(A) of the Licensing Act. This gives powers to relevant officers to serve a closure notice at a premises if there is evidence that a person (the offender) has committed an offence under Section 147(A) in relation to those premises and that the relevant officer considers that the evidence is such that if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted - Section 169(A) (1)(b).

At the time the notice is given, the offender has to be the holder, or one of the holders, of the licence in respect of those premises. This means that if the premises has changed hands between the three offences required for a closure notice under Section 169(A) of the Act, the relevant officer is not entitled to give notice under this section.

The period specified for the purposes of the closure notice must not be more than 48 hours and the time specified from which that 48-hour period would begin must not be less than 14 days after the date of the service of the closure notice. A closure notice has to be accepted by the offender before it can take effect. The alternative to accepting the notice is the right to be tried for an offence under Section 147(A) (as discussed above).

The closure notice is an alternative to prosecution under Section 147(A) and if an offender chooses to accept the notice, the police and trading standards are not permitted to then prosecute under Section 147(A).

What steps can you take to avoid prosecution?

The obvious answer to this question is not to fail three consecutive test purchases.

However, in order to ensure that you do not fail, and bearing in mind the seriousness of being prosecuted under the new Section 147(A) or closed under Section 169(A), there are a number of steps that you will want to consider. Clearly the list is not exhaustive and each operator will need to consider the particular circumstances of his own operation and establish appropriate measures.

• Review your risk assessments on underage sales
• Re-train staff
• Keep written records of all measures adopted and make sure they are reviewed regularly
• Commit to a 'Challenge 21' policy, or if you have already tried that, a 'Challenge 25' policy, prominently advertise it and ensure it is operated
• Introduce an 'over 21 only' policy on nights you identify there to be more underage people in the vicinity, or during all trading hours as necessary
• Consider the types of drinks being sold or promotions run and whether this could have a bearing on attracting a younger crowd
• Liaise regularly with the police licensing officer and consider any suggestions they may have.

In view of the penalties now available to authorities, the lack of a 'due diligence' defence to these new sections of the Licensing Act 2003 mean that three strikes and you really could be out.