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Licensing of Alcohol

Introduction

The Licensing Act 2003 came into force on 24 November 2005. The Act removes the responsibility for the licensing of alcohol from the licensing justices and hands the responsibilities to 'licensing authorities'. These are defined in section 3 and include district councils, unitary authorities and London boroughs.

The principles behind the licensing legislation are:

  • To control particular activities being provided commercially
  • To allow people to engage in these activities in a controlled environment
  • When considering the Public interest in a prosecution, the following general considerations are relevant
  • The seriousness of the offence
  • The exact role of the defendant
  • The location of the offence
  • The attitude of the offender; and
  • Possible alternatives to prosecution.

All offences in the Licensing Act 2003 are summary only, but the time limit for instituting proceedings is raised to 12 months. Proceedings for offences may be instituted by a licensing authority or the DPP. In the case of offences under sections 146 and 147, prosecutions can be brought by a local weights and measures authority (section 186) (Stone's 8-20006).

Offences may be committed by bodies corporate, partnerships and unincorporated associations and by individuals in those organisations if the requirements of section 187 are satisfied (Stone's 8-19829V).

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Unauthorised Licensable Activities

The Law

A person commits an offence under section 136 if he carries on, attempts to carry on or knowingly allows to be carried on a licensable activity on or from any premises otherwise than under and in accordance with a premises license, club premises certificate or valid temporary event notice (Stone's 8-19829X).

Charging Practice

A prosecution may be required:

  • If the licensee knew of the breach of the condition
  • It is a recently imposed condition of the licensing bench
  • It is a recently re-affirmed policy of the licensing bench
  • There have been complaints from the neighbours; or
  • The licensee has recently been reminded of the conduct

It is an offence under section 137 to expose alcohol for sale by retail in circumstances where the sale would be an unauthorised licensable activity.

It is an offence under section 138 to keep alcohol in one's possession or under one's control with the intention of selling it by retail or supplying it in circumstances where the sale or supply would be an unauthorised licensable activity.

A due diligence defence (section 139) is available for all of these offences, except for the offence of knowingly allowing a licensable activity on or from any premises otherwise than under and in accordance with an authorisation to be carried on under section 136(1)(b).

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Drunkenness and Disorderly Conduct

A large number of people can commit an offence of knowingly allowing disorderly conduct on relevant premises (section 140).

Those people include:

  • any person who works at the premises in a capacity, paid or unpaid, which authorises him to prevent the conduct; 
  • the holder of a premises license
  • a premises supervisor;
  • any member or officer of a club who is present at the club when the disorder takes place in a capacity which enables him to prevent it; and
  • the premises user in relation to a permitted temporary activity.

Sale of Alcohol to a Person who is Drunk

Section 141 makes it an offence to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person on relevant premises.

Subsection 2 applies to:

  • any person who works at the premises in a capacity, whether paid or unpaid, which gives him the authority to sell the alcohol concerned;
  • the holder of a premises licence in respect of the premises;
  • the designated premises supervisor (if any) under such a licence;
  • any member or officer of the club which holds a certificate who at the time the sale (or attempted sale) takes place is present on the premises in a capacity which enables him to prevent it; and
  • the premises user in relation to the temporary event notice in question.

This section applies in relation to the supply of alcohol by or on behalf of a club to or to the order of a member of the club as it applies in relation to the sale of alcohol.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Obtaining Alcohol for a Person who is Drunk

Under section 142 a person commits an offence if, on relevant premises, he knowingly obtains or attempts to obtain alcohol for consumption on those premises by a person who is drunk.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

It is an offence for a drunk or disorderly person, without reasonable excuse, to fail to leave relevant premises when requested to do so by a constable or a person to whom s 143(2) applies, or to enter or attempt to enter such premises after that person has requested him not to do so [Stone's 8-19829Y].

See also section 91 of the Criminal Justice Act 1967 which makes it an offence to behave in a disorderly manner in a public place whilst being drunk. Any person found guilty shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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Children and Alcohol

Charging Practice

Note that under the Licensing Act 2003 the relationship between the licensee and the person who sold the liquor is no longer of any relevance:

  • Consider the type of public house unless there are features about it which make it particularly unsuitable for children
  • A prosecution may not be required where the licensee could not be expected to know that the child was under age unless it can be proved:

a. there was a consistent failure by the licensee to prevent the person being served; or
b. it was obvious that the licensee must have known that the person was under-age.

NB: Some police forces deploy test purchasers and you should ensure that they do not look "over-age" and did not incite the commission of the offence.

Unaccompanied Children on Certain Premises

It is an offence for a person listed in section 145(3) to allow an unaccompanied child under 16 to be on premises that he knows are exclusively or primarily used for the supply of alcohol for consumption there at a time when they are open for that purpose, or to allow an unaccompanied child under 16 to be on those premises between midnight and 5am when the premises are open for the purposes of being used for the supply of alcohol for consumption there (Stone's 8-19829ZA).

No offence is committed if the child is on the premises solely for the purpose of passing to or from some other place and there is no other convenient means of getting to or from that place.

If a person is charged with the offence by reason of his own conduct, it is a defence under section 145(6) that the person believed the child to be 16 or over, or the accompanying person (if there was one) to be 18 or over, and he had either taken all reasonable steps to establish the individual's age, or nobody could reasonably have suspected from the individual's appearance that he was aged under 16 or under 18, as the case may be. A person charged because of the act or default of another has a defence if he exercised all due diligence to avoid committing it.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 (£1,000) on the standard scale.

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Sale or Supply of Alcohol to Children

There are numerous offences involving the sale of alcohol to children (Stone's 8-19829ZB]).

A person commits an offence under section 146 if he sells alcohol to a child under 18. A club commits an offence under section 146(2) if alcohol is supplied by it or on its behalf to, or to the order of, a member of the club who is under 18.

A person charged with an offence by reason of his own conduct has the same defence as is available in respect of a section145 charge, that the person charged had no reason to suspect that the individual was under 16; and a person charged because of the act or default of another has a due diligence defence available.

Under section 147 it is also an offence to knowingly allow the sale of alcohol, on relevant premises, to a child under 18. Here, the offence would not be committed if the child unwittingly consumed a spiked drink.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 (£5,000) on the standard scale.

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Persistently Selling Alcohol to Children

Section 147A makes it an offence to sell alcohol to a child under 18 from the same premises on three or more occasions within a period of three consecutive months. The section applies to the person being responsible in relation to the premises at the time of each sale.

It should be noted that there is an alternative to criminal prosecution for the offence of persistently selling alcohol to children. Under section 169 A of the Licensing Act 2003, a closure notice may be given where there is evidence that an offence under section 147A is committed, there is considered to be a realistic prospect of conviction and the offender is still a holder of a premises licence in relation to the relevant premises. A closure notice shall propose a prohibition on sales of alcohol on the relevant premises for a period of between 48 and 336 hours. The form of a closure notice is prescribed in The Licensing Act 2003 (Persistent Selling of Alcohol to Children) (Prescribed Form of Closure Notice) Regulations 2012, which came into force on 25 April 2012.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level £20,000.

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Purchase and Consumption of Alcohol by Children

A child under 18 commits an offence under section 149(1) if he buys, or attempts to buy alcohol, unless that act is committed in the course of him being used for a test purchase operation (Stone's 8-19829ZC).

A person who acts as an agent for a child under 18 by buying, or attempting to buy alcohol on behalf of the child also commits an offence under section 149(3), as does a person who acts as agent for a child under 18 and buys or attempts to buy alcohol for him for consumption on relevant premises (section 149(4)).

However, this last offence does not apply if:

  • the person purchasing or attempting to purchase the alcohol is over 18
  • the child is 16 or 17
  • the alcohol is beer, wine or cider
  • the purchase is for consumption at a table meal
  • the child is accompanied by an adult.

A person guilty of an offence under this section is liable on summary conviction:

  • in the case of an offence committed by a child under 18, to a fine not exceeding level 3 (£1,000) on the standard scale.
  • In the case of an offence committed by a person acting as an agent for a child under 18, to a fine not exceeding level 5 (£5,000) on the standard scale.

A child also commits an offence under section 150 if he knowingly consumes alcohol on relevant premises, and a person to whom section 150(3) applies commits an offence if he knowingly allows the consumption of alcohol by a child under 18 on relevant premises.

A person guilty of an offence under this section is liable on summary conviction:

  • in the case of an offence committed by a child under 18, to a fine not exceeding level 3 (£1,000) on the standard scale.
  • In the case of an offence committed by a person who knowingly allows the consumption of alcohol on relevant premises, to a fine not exceeding level 5 (£5,000) on the standard scale.

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Delivering Alcohol to Children and Sending Children to Obtain Alcohol

It is an offence under section 151 to deliver alcohol to children (Stone's 8-19829ZD).

A person who works on relevant premises in any capacity commits an offence if he knowingly delivers to a child under 18 alcohol sold on the premises, or supplied on the premises (in the case of a club). Similar offences are committed by a person who knowingly allows anybody else to deliver the alcohol.

Note that the offences are not committed if the alcohol is delivered to a place where the buyer or person supplied lives or works; if the child under 18 is himself working on relevant premises in a capacity that involves the delivery of alcohol; or if the alcohol is sold or supplied for consumption on relevant premises.

It is also an offence under section 152 to knowingly send a child under 18 to obtain alcohol sold or supplied on relevant premises for consumption off those premises.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 (£5,000) on the standard scale.

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Unsupervised Sales by Children

It is an offence under section 153 for a responsible person on relevant premises to knowingly allow a child under 18 to make a sale or supply of alcohol on the premises unless the sale or supply has been specifically approved by that or another responsible person.

No offence is committed if the child serves or supplies alcohol to a person for consumption with a table meal in an area set for that purpose (Stones 8-19829ZE).

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 1 (£200) on the standard scale

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