LICENSING OF ALCOHOL

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 8-200006).

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).

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 even 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 breach;
  • 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 out under section 136(1)(b).

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.

Sales 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.

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 the 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 the 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 5 am 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, s 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 any offence under this section is liable on summary conviction to a fine not exceeding level 3 (£1,000) on the standard scale.

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 section 145 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.

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 169A 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 of £20,000.

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 meal table;
  • 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 who knowingly allows the consumption of alcohol on relevant premises, to a fine not exceeding level 5 (£5,000) on a standard scale.

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.

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.

The Licensing Act 2003 introduced separate licences for the premises and for the individuals. These are known respectively as the Premises Licence and the Personal Licence. In order for the sale of alcohol to take place, the premises must have a premises licence and there must be a designated Premises Supervisor who must hold a personal licence. Every sale must be made or authorised by a personal licence holder. It also makes the regulation of licensable activities the responsibility of local district and borough councils.

Licensable activities covered by the act are:

  • The sale of alcohol by retail;
  • The supply of alcohol by or on behalf of a club, or to the order of, a member of a club;
  • The provision of regulated entertainment;
  • The provision of late night refreshment.

The sale of alcohol by retail

Alcohol means spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor. A sale by retail is any sale except those to be made to a business or club to be sold on to customers.

The supply of alcohol by or on behalf of a club, or to the order of, a member of a club

In theory a club’s supply of alcohol is the property of all of the members and a supply to a member is not therefore a sale by retail. The supply by a club to members is therefore a separate licensable activity.

The provision of Regulated Entertainment

This includes the provision of entertainment or entertainment facilities for members of the public or a section of the public, exclusively for members of a club or members and their guests. It also includes the provision of any entertainment or entertainment facilities provided for payment and with a view to profit. This means that a private function could be within the definition but only if there is a charge made and the function could be within the definition but only if there is a charge made and the function is run with a view to a profit as opposed to just covering the cost of the entertainment.

Regulated entertainment also includes showing films putting on plays and the provision of sporting activities for spectators.

See also The Live Music Act below.

The provision of late night refreshment

This is the provision of hot food or hot drink between the hours of 11 pm and 5 am for consumption either on or off the premises either to members of the public or from premises to which the public has access. Premises can include a vehicle. The supply of hot food to a person staying in a hotel is excluded but public houses and nightclubs supplying hot food after 11 pm will need to be licensed.

Authorisation of licensable activities

The above licensable activities may be permitted by a premises licence, a club premises certificate or a temporary event notice.

The licensing objectives

As stated above the regulation of licensable activities under the new act lies with the council. In deciding whether to grant a licence or certificate the council may only have regard to four licensing objectives. These are:

  • the prevention of crime and disorder;
  • public safety;
  • the prevention of public nuisance; and
  • the protection of children from harm.

The council must exercise its functions with a view to promoting the licensing objectives and must also have regard to its statement of licensing policy and any guidance issued by the Secretary of State. The councils are required to draw up such statements of policy with a view to promoting the licensing objectives.

Premises Licenses

A licensable activity may not be carried on from any premises without a premises licence, a club premises certificate or a temporary event notice. A premises licence may be granted to a person who carries on or proposes to carry on a business which involves the use of the premises for licensable activities. A person includes a body of persons corporate or unincorporate. Therefore a company, partnership or an individual could apply for and be granted a premises licence. An individual must be over the age of 18. Application may be made for the transfer of the premises licence to a new licence holder.

The application for a premises licence is made to the local authority for the area in which the premises are situated.

The operating schedule

Every application for a premises licence has to be accompanied by an operating schedule. The operating schedule is to be drawn up by the applicant for the licence and is to state:

  • what licensable activities he intends to carry on in the premises;
  • the proposed times of opening;
  • the period during which the licence is in force (but only if the applicant wished it to be for a limited period);
  • whether the consumption of alcohol is to be on or off the premises or both;
  • the steps to be taken to promote the licensing objectives.

The applicant may specify any combination of the licensable activity depending on how he intends to use the premises. E.g. he may wish to sell alcohol, provide regulated entertainment, show films, and sell hot food after 11 pm and each of these will have to be specified. If an activity is not specified in the operating schedule it will not be licensed because whatever is specified in the schedule will be converted into conditions on the licence if the application is approved. The incorporation of the activities specified in the operating schedule into conditions on the licence sets those activities in stone and they may only be changed by making an application to the council for variation.

The Designated Premises Supervisor

Where a premises licence permits the sale of alcohol there are two mandatory conditions concerning the Designated Premises Supervisor. These are:

  • that no sale of alcohol may be made at a time where there is no Designated Premises Supervisor or when the Designated Premises Supervisor does not hold a Personal Licence or his Personal Licence has been suspended; and
  • that every sale of alcohol must be made or authorised by a person who holds a personal licence.

The Operating Schedule must state who the Designated Premises Supervisor is to be and his written consent must be included with the application.

There may only be one Designated Premises Supervisor and he may also be the holder of the Premises licence. At any premises the operators may decide to have a number of Personal Licence holders to ensure that the condition that sales of alcohol be made or supervised by a personal licence holder is complied with.

Changing the Designated Premises Supervisor

Application is made by lodging the prescribed form, the licence and the feet. The police may object but only on the ground that the grant of variation would undermine the prevention of crime objective.

Objections to an application

If there are no “relevant representations” the application for a premises licence must be granted with the imposition of such conditions as are consistent with the operating schedule together with the mandatory conditions referred to above. There is a further mandatory condition that if there are door supervisors they must be licensed by the Security Industry Authority.

A “relevant representation” may be made by a “responsible authority” or any other person.

A “responsible authority” includes the police, the fire authority, the local planning authority the local authority itself, the Primary Care Trust and the local Health Board and any body in the area responsible for the welfare of children.

An objection referred to in the act as a representation may only be admissible if it relates to the licensing objectives.

In many cases where there are no relevant representations the application will be granted at officer level without the need for any hearing by the local authority’s licensing committee. If there are representations the licensing authority has discretion to impose conditions that are necessary for the promotion of the licensing objectives.

Life of premises licence

Such licenses are not subject to renewal and have effect until revoked, suspended or surrendered or the licence holder becomes mentally unstable, insolvent or dies. An annual fee is payable to the local authority. The Council has power to suspend a licence or a Club Premises Certificate on failure to pay the annual licence fee, although exemptions are built in for administrative error, disputes and a “grace period”.

Applications to vary premises licences

When a licence is granted the conditions imposed on it give effect to the details set out in the operating schedule and therefore whatever was specified in the operating schedule is then set in stone. There may be an application to the council to vary the conditions on the premises licence (effectively varying the operating schedule).

The licence document

The licence or a certified copy of it must be kept at the premises under the control of the licensee or a person who has been specifically nominated to have custody or control of it.

The summary of the licence or a certified copy must be prominently displayed at the premises together with the name of the person who has custody or control of the licence document.

It is an offence for the licence holder to fail or refuse to produce the licence on request from the local authority, a constable or an authorised person.

Review of licence

A responsible authority (see definition above) or any other person may apply for the review of a licence at any time. Any review must relate to one or more of the licensing objectives.

Personal licences

A personal licence is only required for the sale of alcohol and not for any of the other licensable activities. Every sale of alcohol must be made or authorised by a personal licence holder. Any premises licence must specify a Designated Premises Supervisor who must be a personal licence holder. There may only be one Designated Premises Supervisor but because of the requirement that sales of alcohol must be by or supervised by a personal licence holder it may be prudent for premises to have more than one personal licence holder employed.

Application for the initial grant of the personal licence must be to the local authority for the area where the applicant resides. That local authority then deals with that personal licence at all times thereafter. A personal licence is granted for 10 years and has to be renewed every 10 years. The application for renewal has to be the local authority that granted it even if the personal licence holder has moved to a different area.

An application for a personal licence must be granted if the applicant:

  • is at least 18 years old;
  • possesses a licensing qualification;
  • has not had a personal licence forfeited in the 5 years immediately preceding the date on which the application is made;
  • has not been convicted of any relevant offence or foreign offence.

If the applicant does not satisfy the first three conditions the application must be refused. If the applicant has a conviction then the police may object if they consider that granting the licence would undermine the crime prevention objective. If the police do not give notice of objection or such notice is withdrawn the licence must be granted. If they do give notice which is not withdrawn there must be a hearing. At the hearing the only ground on which the local authority may refuse to grant the personal licence is the promotion of the crime prevention objective. The list of relevant offences is extensive.

A personal licence holder must produce that licence for inspection to a constable where he is present on premises to supply or authorise the supply of alcohol where a premises licence is in force.

Temporary event notices

The person wanting to hold an event simply gives notice to the Council, the Police and the Environmental Health Officer. Permission to sell alcohol or provide regulated entertainment is then in place unless there are counter notices served. The Police and Environmental Health Officer may give counter notices only if the event does not promote one or more of the licensing objectives.

A holder of a personal licence may give 50 temporary event notices a year, an individual who does not hold such a licence may give 5. Such an individual does not have to hold a personal licence and must be 18 years of age or older. Any individual temporary event may last up to 168 hours and the numbers attending at any one time must not exceed 499. No premises may be used for more than 12 temporary events for a period not exceeding 15 days in any calendar year. There must be a gap of 24 hours between each temporary event.

Notice has to be given using the prescribed form. The notice must state:

  • the licensable activity;
  • the period of the activity;
  • the times during the event period that the licensable activities will take place;
  • the maximum number of persons to be allowed on the premises at any one time;
  • where alcohol is to be provided whether on or off sales are to be included.

The notice must identify the premises user who is then the person responsible for compliance with the law and therefore liable to prosecution.

TENs must be served on the Licensing Authority, Police and Environmental Health Officer by no later than 10 clear working days prior to the event not including the day the TEN is received or the day of the event. It is important when calculating the notice period to remember to allow for bank holidays as Non Working Days. The authority must acknowledge receipt of the notice and if the Police and Environmental Health Officer do not object the event can take place. The Police and Environmental Health Officer may object by giving counter notice and then the authority must hold a hearing to consider the application. The Police or EHO objection must be on a Licensing Objective. An appeal may be made to the magistrates but no appeal can be brought later than 5 working days before the event. The notice must be displayed on the premises or be kept in the custody of the premises user or a nominated person. If the latter their name must be displayed identifying the person as the custodian of the notice.

Late Tens

Late notices can be given no later than 5 working days but no earlier than 9 working days before the event in relation to which the notice is given. The number of late notices that can be given in any one calendar year is limited to 5 for personal licence holders and 2 for non-personal licence holders. These count towards the total number of temporary event notices (i.e. 50 temporary event notices per year for personal licence holders and 5 temporary event notices for non-personal licence holders). NB late TENs should only be submitted in exceptional circumstances which are beyond the control of the premises user.

Club premises certificates

The special nature of a members club is preserved by the new legislation. A club does not sell alcohol to members and their guests because the members between them own the alcohol. They are therefore only being supplied with something that they own anyway.

  • A local authority may only entertain an application for a club premises certificate if:
  • there is a gap of at least 2 days between nomination or notification for membership and admission;
  • the club must be conducted in good faith as a club;
  • the club has at least 25 members;
  • alcohol is supplied to members and their guests only by or on behalf of the club.
  • An application for a club premises certificate must be made to the local authority in whose area the premises are situated.
  • An application must be accompanied by:
  • a club operating schedule, giving details of the qualifying club activities, the time when these take place, club opening times, whether off sales are to be made and the steps proposed to promote the licensing objectives;
  • a plan of the premises;
  • a copy of the rules of the club.

As with premises licences the application may be granted without a hearing if there are no objections but a hearing must be held if there are.

The club premises certificate lasts indefinitely and does not have to be renewed. An application for review may be made at any time as with a premises licence. An application for review may be made by:

  • a responsible authority;
  • any other person.

Under the old law members clubs were allowed to open their premises for the sale of alcohol to non members. Often the club would be hired out to non members. The number was specified in the club registration certificate and was often greater than 12. This power is not repeated in the new act. Instead there is a power to sell to associate members who are members of other qualifying clubs. Clubs will therefore have to rely on giving up to 12 temporary event notices. If this proves insufficient the only solution may be to apply for a premises licence and surrender the club premises certificate. The permitted hours on the premises licence will then need to be such as to accommodate such events e.g. with a terminal hour of midnight or later.

The hours during which a club may provide licensable activities are specified in the operating schedule and on the application being granted become the club’s permitted hours. They may be varied on application.