Put to the test
Paddy Whur discusses the consultations that are taking place in respect of test purchasing for both alcohol licensed premises and betting shops. A more consistent approach is needed, he argues.
It is interesting to see that test purchasing of age-restricted products is again very much in debate. Consultations are being carried out about how regulatory bodies should carry out test purchasing.
The Home Office, Association of Chief Police Officers and (what was) LACORS all have definitive views on how test purchases should be carried out. This has lead to a significant level of inconsistency around the country in the approach being taken.
In some areas, the volunteers being used to carry out the test purchases are permitted, if not encouraged, to lie at the point of sale, whereas in other areas they are expressly forbidden from lying. Some areas are allowing the volunteers to use fake identification to try and affect a sale.
Another worrying circumstance I have come across recently is where an adult is used to distract a member of staff whilst a volunteer either tries to make a sale or plays machines in betting shops. This can be very difficult where supermarket chains are using self-service tills.
The sale of alcohol, scanned through a self-service till, will need to be verified by a supervising member of staff. Different systems then operate whereby a supervisor may have to physically unlock that till by putting a code in, where they will be prompted to Challenge 21/25 and ask for ID in those circumstances, or remotely release the till from another service point.
Notwithstanding a robust approach being undertaken, I am told by both enforcement agencies and clients in the on and off trade that the number of failed test purchases is reducing.
The Local Authorities Co-ordinators of Local Regulatory Services (LACORS) had produced a number of protocols on test purchasing in which they had softened their view on the ability of volunteers to lie. Unfortunately, that organisation no longer exists so we will not see any further centralised guidance from them.
Another issue is the age and look of the test purchase volunteer.
I recently attended an interview for a night club operator who had passed and failed a test purchase exercise on the same evening. The operator was then asked for a formal interview and I attended on their behalf. In advance of the hearing I asked for a photograph of the volunteer so that I could advise my client before the interview. This was not forthcoming. When I attended the interview, there were two very distinct volunteers. The first clearly looked under the age of 18 years, and we had successfully challenged her for age verification at the door. She had not been able to produce a valid photographic ID and not been given entry to the premises. The second test purchaser was six feet tall with full make-up and looked over the age of 18 if not over 21. During the interview I expressed my disappointment that we had not been given sight of this photograph prior to the interview and highlighted that in the circumstances I would have served her as she looked old enough to be consuming alcohol. As it turned out, she was only a number of months short of her 18th birthday.
Whilst all of us want to ensure that very young people do not have access to alcohol, this last example of a test purchase does nothing to strengthen the working bond between an enforcement agency and the trade.
Interestingly, this matter was taken no further by the Trading Standards Department concerned.
It would be hoped that after these consultations a more consistent approach to test purchasing can be achieved.
It is interesting to note that Serve Legal, the external test purchase company, has welcomed the new consultation to be run by the Local Better Regulation Office, again hoping that a consistent approach can be achieved. This consultation is to run until the end of September and can be found here.
A number of clients we represent undertake their own test purchasing. This is as frequent as four times a year for each site. Of course, if a company decides to do this they are not allowed to use anybody under the age of 18 years as this would be committing a criminal offence. However, they do use people who are just over the age of 18 years, but who look significantly younger. This feeds into their training packages and creates a good due diligence defence if coupled up with robust Challenge 21/Challenge 25 refusals books, continued refresher training and the development of awareness in dealing with under age sales.
We have seen an increase in activity in the gambling sector with test purchasing taking place at betting shops and adult gaming centres. The Gambling Commission have issued a test purchasing guide. This document attempts to define the role the Gambling Commission will take in test purchase of gambling premises. It sets out the specific differences between gambling and liquor premises and highlights the difference in approach to be undertaken.
Paddy Whur is a partner at Walker Morris. He can be contacted on 0113 283 2629 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
