A question of interpretation

The new sections 19A and 73A of the Licensing Act 2003 provide for the imposition of mandatory licensing conditions for premises that sell and supply alcohol. As of 1 October 2010, two such conditions came into force (implementing an age verification policy and providing, and advertising, small measures of beers, ciders, spirits and wine).

Juan Lopez examines the potential practical difficulties of interpretation concerning, in particular, the first proposed mandatory condition (banning irresponsible promotions), which licensing authorities will need to pay close attention to when considering compliance.

The law and guidance

Section 32 of and Schedule 4 to the Policing and Crime Act 2009 insert new sections 19A and 73A of the Licensing Act 2003, which provide for the Secretary of State to impose up to nine mandatory licensing conditions to all current or future relevant premises licences and club premises certificates which authorise the retail sale and supply of alcohol.

The Schedule to the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 sets out five mandatory conditions concerning the following:

• Banning irresponsible promotions (Schedule to the Order, paragraph 1)
• Banning the dispensing of alcohol directly into another’s mouth
• (paragraph 2)
• Ensuring customers access to free tap water (paragraph 3)
• Implementing an age verification policy preventing underage sales (paragraph 4)
• Providing, and advertising of, small measures of beers, ciders, spirits and wine (paragraph 5).

The conditions impose obligations directly on the “responsible person”, being: the premises licence holder, the designated premises supervisor and any person aged 18 or over authorised to make sales of alcohol at premises.

All conditions, other than those concerning age verification and the prevention of underage sales, apply to premises licences and club premises certificates that authorise the consumption of alcohol on the premises.

The last two of the first five mandatory conditions set out under the Schedule to the 2010 Order (age verification and small measures) came into force from 1 October 2010.

Exemplar good practice initiatives and policies have been published by the Home Office: Selling Alcohol Responsibly: The New Mandatory Licensing Conditions (April 2010) and Good Practice Examples from the Alcohol Retail and Hospitality Industries (April 2010). However, fundamental matters of interpretation remain.

The Home Office has issued revised guidance under section 182 of the Licensing Act 20031 – see October 2010: Amended Guidance issued under Section 182 of the Licensing Act 2003 – to take account of the legislative change: see paragraphs 10.43-10.83 of that Guidance.

It is likely to be most expedient for an established breach of condition to be dealt with by means of review rather than by prosecution under section 136 of the 2003 Act (unauthorised licensable activities) or possibly by closure order proceedings.

Banning irresponsible promotions: key points for licensing authorities

Application of the first mandatory condition (banning irresponsible promotions) – at paragraph 1 of the Schedule to the Order – gives rise to numerous issues of interpretation. This condition is aimed at ensuring that the responsible person “shall take all reasonable steps” to ensure that staff do not “carry out, arrange or participate” in any “irresponsible promotions”. Fundamentally, the focus is upon regulating promotional events and not the general conduct or consumption practices of a patron, outside of an organised promotional event.

Types of an “irresponsible promotion” contemplated by the condition are not exhaustively prescribed by reason that such a promotion will include “substantially similar activities” to those activities identified in paragraphs 1(2)(a) – (e) and which may broadly be identified as:

• Drinking games or activities aimed at drinking within time limits or drinking as much alcohol as possible (sub-paragraph (a));
• Providing unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or a defined group, when not having a table meal (sub-paragraph (b));
• Provision of an alcohol ‘prize’ to encourage or reward consumption over a period of 24 hours or less (sub-paragraph (c));
• Provision of free or discounted alcohol in relation to the viewing on the premises of a sporting event where an outcome or event is determinative of that provision (sub-paragraph (d));
• Selling or supplying alcohol by promotional advertisement which of itself condones, encourages or glamorises anti-social behaviour or drunkenness (sub-paragraph (e)).

Issues of interpretation

A qualifying drinking game or activity arising from a promotional event within the meaning of paragraph 1(2)(a) will include any game or activity characterised by the consumption of alcohol at speed or within a prescribed time limit. This condition is not intended to apply to conventional ‘happy hours’ so long as the promotion is not intended to “encourage individuals to drink excessively or rapidly” (paragraph 10.58, Section 182 Guidance). It will therefore be for stakeholders (and the courts, in appeal or prosecution proceedings) to adjudge whether a particular event should be classified as such a drinking game or activity. But over how finite a period may a lawful ‘happy hour’ or analogous promotion run before contravening paragraph 1?

The promotional targeting of a defined group or of the public generally is prohibited under paragraph 1(2)(b) in circumstances where the quantity of alcohol provided, whether free or discounted, is “unlimited” or “unspecified”.  ‘All you can drink’ type promotions are therefore prohibited.

However, paragraph 1(2)(b) does not prohibit promotions in which the quantity is specified and/or limited. The Home Office Guidance – Selling Alcohol Responsibly: The New Mandatory Licensing Conditions at p. 5 – curiously exemplifies prohibited promotions as to include “pay £5 entry and then drink up to 12 shots” and “10 pints for £10”, but these are promotions which are outwardly predicated on the provision of a limited and specific quantity of alcohol, albeit for a fixed or discounted fee. Licensing authorities should be careful not to exceed their statutory power in the exercise of regulatory functions. Further, a “group defined by a particular characteristic” for the purposes of paragraph 1(2)(b) could encompass any and all ‘groups’ as such, whether definable by gender, age, profession or even dress!

A further interpretational ambiguity arises from this paragraph by reason of the exemption for any patron who is simultaneously having a “table meal” (see: R (on the application of Luminar Leisure Ltd.) v Norwich Crown Court [2004] EWCA Civ 281; [2004] 1 W.L.R. 2512).

Under paragraph 1(2)(c), the prohibition of giving a prize or reward inside a time limit of 24 hours is considered to be aimed principally at the ‘drink two and get the third free’ type promotions. However, a promotion which is based on recording customer loyalty by the provision of a prize or reward and which may only be claimed on a subsequent visit to the premises (and at least 24 hours following the qualifying consumption of free or discounted alcohol) is not prohibited. Hence such a promotion which incorporates use of a conventional ‘loyalty card’ is arguably not subject to the prohibition.

The prohibition under paragraph 1(2)(d) might encompass sporting events that are virtual as well as real. It is however not immediately clear that such a broad construction is at all consistent with the intention of Parliament. What is less ambiguous is that virtual sport may only be subject to the prohibition where it is viewed on premises. Hence, it would appear that virtual sport in which patrons directly participate (for example, by participation in a game of virtual golf) and, through participation, bring about one or more outcomes or another qualifying event in order to become eligible for free or discounted alcohol, is not prohibited.

Under paragraph 1(2)(e), two further matters of interpretation arise. First, in order for the prohibition to operate, the selling or supplying of alcohol must be in accordance with promotional advertising in the form of a poster and/or flyer on, or in the vicinity of, the premises. A qualifying poster or flyer may be simple enough to characterise, perhaps not. Where however the promotional advertisement is not on the premises, the question of ‘vicinity’ naturally arises (see: R (on the application of 4 Wins Leisure Ltd.) v Licensing Committee for Blackpool Council [2007] EWHC 2213 (Admin)).

Secondly, where the poster and/or flyer is on, or within the vicinity of, the premises, it must be found to encourage or glamorise “anti-social behaviour” (as defined in section 36 of the Anti-Social Behaviour Act 2003) or “refer to the effects of drunkenness in any favourable manner”. It is not considered that either phrase will in practice be construed broadly and, as such, this prohibition is unlikely to become widely engaged unless the subject poster or flyer refers in express terms to one or more types of anti-social behaviour and/or expressly characterises drunkenness in positive language.

Juan Lopez is a barrister at Francis Taylor Building (www.ftb.eu.com). He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..