Mandatory code: condition confusion looms
What has grabbed the headlines over the past week or so has been the level of penalties for breach of the new mandatory conditions, which the Home Office is introducing under the Policing and Crime Act.
In fact, these penalties already exist, and have done since the Licensing Act gained royal assent back in July 2003. What the Government has done is to add to already existing "mandatory conditions" a new set of their own conditions, which will apply to all on-licensed premises.
The amendment to the Licensing Act in fact allows the Secretary of State to set conditions for either the on or off-trade, or both. Conditions can even be set for relevant premises licences of a particular description, so there is no legal requirement for conditions to be universal. But that is what has happened for the on-trade, apparently.
Fortunately for licensing authorities, there is no requirement for all premises licences to be called in and physically amended. To judge from the track record in certain areas, you would be lucky to get your licence back by 2013!
From the date of implementation of the Order, which in the first instance is set at 6 April this year, every single licence will be "deemed" to include three of the new obligatory conditions — banning irresponsible drinks promotions, no alcohol dispensed direct into the mouth and free tap water on request.
Subsequently, in October, two further conditions will come into effect, one of which affects both side of the trade. At that time, it will be a condition on all licences for there to be an age verification policy in place, so that all customers who appear to be under 18 are requested to produce some form of acceptable proof-of-age documentation.
The other condition, which from a legal perspective bridges two elements of the law, is to be a requirement for certain minimum measures of beer, spirits and wine to be available.
There is no need for the Government to amend the penalty provisions of the Act. Breach of any mandatory conditions already attracts a penalty of up to six months imprisonment or a fine of up to £20,000. This is to cover all offences where the terms and conditions of a licence are broken, or even when no licence exists at all.
Ignorance is no defence
The problem may be in ensuring that all licensees are made aware of the new conditions and the Government may seek the co-operation of local authorities in promoting the new requirements to the trade, although there is no provision actually requiring notification. It seems that ignorance of the law is to be no defence.
There has been comment on exactly what will constitute an "irresponsible" promotion. The Home Office has given some examples, but clearly there are going to be borderline cases, particularly when there is a promotion linked to a particular product or an event.
The Government has maintained that this will not affect the normal type of offer, but it remains to be seen who will set the ground rules on this aspect of the new code.
But, once again, there are likely to be varying interpretations by local authorities and police forces, so undermining the concept of "consistency" that was such an important aspect of the new licensing laws.
There are also going to be some difficulties of interpretation where certain pre-existing conditions are on licences over promotions.
The new rules will override any such conditions if they are "inconsistent with and more onerous than" those on the licence, says the new law. But who is to judge exactly how that will be interpreted? It looks like an interesting year ahead for the trade and its lawyers.
