Policing and Crime Act 2009 – 'two strikes and you're out'
The Policing and Crime Act 2009 has completed its passage
through both Houses of Parliament and received Royal Assent on 12
November 2009.
One of the key sections in the Act in relation to licensed
premises is the amendment to the offence of 'persistently selling
alcohol to children' from three occasions to just two occasions
within three months. This provision will now come into force on 29
January 2010.
The original 'three strikes' offence was only introduced in June
2007 and carries a £10,000 maximum fine on conviction. In addition,
the court has the power to suspend the premises licence for up to
three months. There is a provision which allows the premises
licence holder to accept an immediate 48 hour closure instead of
facing prosecution.
The 'persistently selling alcohol' offence is committed by a
premises licence holder (not the seller) where there is proof of
underage sales at particular premises on three separate occasions
(to be reduced to two) within a three month period. There is no due
diligence defence available to the premises licence holder and
proof that an underage sale occurred can be based simply on payment
of a fixed penalty notice by the seller or even a caution.
There is anecdotal evidence that individual sellers are
accepting fixed penalty notices rather than being faced with the
aggravation and cost of court proceedings in circumstances where
they may otherwise have a good defence. The reduction to two
occasions of under age sales under the Act means that it will be
even more important for operators to encourage members of staff to
take independent legal advice before accepting a fixed penalty
notice or caution following a test purchase operation.
comment
The offence of persistently selling alcohol is relatively new on
the Statute book and there has really been insufficient time to
prove its effectiveness. It is difficult to see how 'two occasions'
within a three month period can be described as 'persistent' within
the normal construction of the English language.
More importantly, there are two significant reasons why the
reduction in the number of underage sale occasions from three to
two is both punitive and unnecessary. Firstly, the perpetrator is
the member of staff who actually carries out the sale and yet the
offence does not allow for any assessment of due diligence for the
premises licence holder. It is known that individuals are likely to
accept fixed penalty notices rather than seek to challenge the
evidence through the courts and the licensee has no ability to
affect their decision.
At least the existing requirement for three occasions to a
degree allows the licensee to respond to repeat incidences of under
age sales by taking appropriate action against individual staff
members. The new offence could therefore punish a perfectly good
operator who takes all responsible steps to enforce his obligations
under the law.
Secondly, there is a clear sense of double jeopardy for the
premises licence holder. Police and Trading Standards authorities
are already regularly bringing review proceedings against licensees
following second failed test purchases (sometimes only one!) and
this potentially carries a three month suspension or revocation of
the licence and the possibility of restrictive conditions. In view
of the use of these existing powers, which do not require proof by
means of conviction for an offence, it is simply not necessary in
our view to lower the number of underage sale occasions from three
to two.
The Policing and Crime Act will also allow local councillors to
make representations to licensing applications in their area as
'interested parties' with effect from 29 January 2010 and this will
include the power to apply for a review of a premises licence.
There will be guidance (yet to be issued) on how these powers
should be applied, but it is a concerning development as it
potentially moves the licensing authority 'into the arena' and can
cause their independence to be questioned.
In a separate development, the High Court have recently held
that responsible authorities or interested parties who had made
representations to a licensing application do not have a right to
appear as a party to any subsequent appeal. The judges ruled that
the magistrates' court would still have a discretion to hear from
any person on an appeal, if it was in the interests of justice and
considered necessary to promote the licensing objectives. The case
is significant in that it is now clear that the licensing authority
are the only respondents to an appeal by an applicant and so they
will have conduct of the defence to the appeal and need to
determine which witnesses they intend to call.
