Applying the Mandatory Conditions

The Home Secretary's new mandatory conditions relating to the supply of alcohol have generated a great deal of controversy. Rachel Kapila looks at some of the practical problems with the legislation.

The Policing and Crime Act 2009 gave the Secretary of State the power to impose a maximum of nine new mandatory conditions on all existing and future premises licences relating to the supply of alcohol. Following a period of consultation, five such conditions were specified the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010. The Order has now been approved by both Houses of Parliament, and will come into force in two stages, in April and October this year.

The new conditions are contained in the schedule to the Order, and may be summarised as follows:

1. Condition 1 imposes an obligation on the “responsible person” (as defined by section 153(4) of the Licensing Act 2003, i.e. the premises licence holder, the DPS and any other person who is authorised to sell alcohol on the premises) to “take all reasonable steps to ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises”
2. Condition 2 requires the responsible person to “ensure that no alcohol is dispensed directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability)”
3. Condition 3 requires the responsible person to “ensure that free tap water is provided on request to customers where it is reasonably available”
4. Condition 4 applies to the premises licence holder (or club premises certificate holder) only, and requires that an age verification policy be applied to the premises, requiring individuals who appear to be under 18 years of age, “or such older age as may be specified in the policy”, to produce suitable identification “before being served” alcohol
5. Condition 5 requires the responsible person to ensure that alcoholic drinks supplied on the premises are available to customers in certain specified measures, and that customers are made aware of the availability of those measures.

The broad scope of these conditions will be immediately apparent. With the exception of condition 1, the conditions impose strict liability duties (the responsible person “shall ensure…”) and do not require any link between the activity which is the subject of the condition and the licensing objectives.

To take an example, condition 2 will, on the face of it, be breached where a customer takes a sip from another customer’s glass of wine while the latter is holding it, regardless of whether or not the circumstances are such as to involve a risk of crime and disorder, prejudice to public safety, public nuisance, or harm to children. Further, by having failed to prevent this conduct occurring, the responsible person (who may not even be on the premises at the time) will potentially be liable to criminal prosecution under section 136 of the 2003 Act.

The way in which the conditions have been drafted is also likely to give rise to difficulties in their interpretation and enforcement. Three principal issues can be identified.

The first issue is that the wording of several of the conditions is such as to allow for a number of alternative interpretations (or even apparently none at all). This is particularly the case with regard to condition 1. An attempt is made to define “irresponsible promotions” in paragraph 1(2) of the schedule, but this contains several terms which could have any number of different meanings (for example, “drink as much alcohol as possible”, “discounted alcohol”, “condone, encourage or glamorise anti-social behaviour”).

Perhaps even more importantly, no definition is provided of the word “staff” and it is therefore not clear who is intended to be caught by the condition. Bearing in mind that the responsible person in question may not employ or be directly responsible for any of the individuals working on the premises, is the condition intended to be limited in its application to those members of staff who are in his employment, or are reasonably within his control?

The second issue arises from the way in which the conditions in the 2010 Order have been constructed. By contrast to the existing mandatory conditions in sections 19, 20 and 21 of the 2003 Act, which simply bind the premises, the new conditions make reference to the person who is responsible for carrying them out. In relation to conditions 1, 2, 3 and 5, this is the “responsible person” (as defined by section 153(4)).  Condition 4, on the other hand applies only to the premises licence holder.

The difficulty arises when considering how condition 4 is to be enforced. The effect of the case of Hall & Woodhouse v. Poole Borough Council [2009] EWHC 1587 (Admin) is that a premises licence holder will not be guilty of an offence under section 136(1)(a) of the 2003 Act (carrying on a licensable activity otherwise than in accordance with a licence) unless he is in fact carrying on the licensable activity.

It is unlikely that condition 4 will have the effect of changing this basic proposition. It follows therefore that an absentee premises licence holder – for example the owner of tenanted premises – who fails to adopt an age verification policy as required by condition 4 is highly unlikely to be capable of being convicted under section 136(1)(a).

If he were to be prosecuted under section 136(1)(b) for “knowingly allowing” the licensable activity to be carried on in breach of the condition, the proceedings would turn upon the extent to which he could be said to “allow” the activities to continue when the condition had not been fulfilled. This is by no means clear.

Meanwhile, if the tenant of the absentee premises licence holder were prosecuted under section 136(1)(a), it is likely that he would be able to rely on the due diligence defence under section 139, on the basis that the duty to have a policy in place is not his, and that he has done everything he can to require the premises licence holder to comply with that duty. The end result may be that enforcement of condition 4 is confined in practice to the bringing of review proceedings.

The third issue arises in the specific context of remote sales of alcohol (internet sales, wine clubs, etc). The present position is that, provided that the alcohol is delivered to the home or work address of the buyer, the person making the delivery is under no obligation to check that the person taking the delivery is aged 18 or over. This is essentially because the point of sale has already passed: see section 190 of the 2003 Act, and also section 151 (offence of delivering alcohol to children).

The policy imposed by the new condition 4, however, requires that a person’s age be verified not before being “sold” alcohol, but “before being served” alcohol. This would appear to encompass the situation where, following a remote sale, a responsible person delivers alcohol to a child on behalf of the buyer. If no identification is requested in such circumstances, it seems that the policy would be breached, even though the responsible person has committed no offence under section 151. While this almost certainly was not the government’s intention, it does appear to be a consequence of the wording of condition 4.

Local authorities, the trade and the courts should therefore be ready to grapple with some significant issues in connection with the new mandatory conditions.  It may be that some assistance will be derived from statutory guidance, which will no doubt be issued in due course. However it is unlikely that such guidance will remedy problems which arise from the wording of the legislative provisions themselves.

Rachel Kapila is a barrister at 3 Raymond Buildings, specialising in licensing and regulatory law. (www.3raymondbuildings.com)