Licensing Act: not playing it by the book

Of the Seven Deadly Sins of licensing, underage sales have received the lion's share of attention by this Government since the new Licensing Act came into effect, says Peter Coulson.

Prior to 2005 it was arguably late sales that gained most attention from the police and the local community. But with a succession of legislative changes and public announcements, the Home Office has made it clear that selling alcohol to minors is a criminal activity little short of physical assault in terms of its outrage against society.

Now, with the prospect of loss of licence after just two examples of a failed test purchase or a sale to a minor (the so-called "two strikes" rule), the licensed trade is even more under the cosh.

So it is quite reasonable to question the methods being employed by the police and the enforcement authorities — trading standards — in pursuing this crime.

In recent months I have been advised of examples of so-called test purchases that involved not only a juvenile, but accompanying adults.

The scenarios differ, but in at least three cases the adult has been involved directly in the purchase in some way, either by ordering drinks containing alcohol, or in placing the goods on the counter (in the case of an off-licence). In one example, it was not clear who had placed the money on the bar, because the staff member did not see the actual payer.

While I have been long enough in this business to accept that defendants have a variety of ways of protesting their innocence, I am also aware that investigating officers do not always play it by the book.

If there is a way of confusing the server, then they may seek to take it, in the hope of inducing a breach of the law. The basis for what they are doing is to secure a black mark or, better still, a conviction against the licence holder.

Chance of confusion​

But there is here a clear rule, which ought to be followed in every instance. There should be a single buyer, who is underage, and a single seller, so that there is absolutely no chance of confusion as to who made the purchase.

Ordering multiple drinks, for example, with two high-strength alcoholic mixtures and one orange juice, with two adults and one youngster standing at the bar, seems to me to be a form of entrapment, because of the logical assumption made by the server.

As I understand it, there is a code of practice on test purchasing issued by LACORS, the local Government regulatory body. I have requested sight of this, but it has been unavailable.

However, I am assured by them that it contains clear guidelines on how test purchases should be carried out, so that no-one is in any doubt, should the matter come to court.

This is in line with Police & Criminal Evidence Act (PACE) regulations, which govern how you collect evidence. But the problem is that often these issues do not come before the court.

The "two-strikes" rule does not require proved offence, just two allegations or instances. So the method of collecting those may not come under court scrutiny in the same way as straight prosecutions.

Weekend closures​

However, the effect on the licensee could be terminal. For example, there have been recent examples of the police using the 48-hour closure option as a financial punishment by selecting the Easter weekend as their chosen period, when they could just as easily have picked the weekend before or the weekend after.

I hope I am receiving only the rare examples of unfairness. But I fear it may only be the tip of the iceberg that I see at the moment.