A drink at the last chance saloon

There is public clamour for the prosecution of those who encourage and engage in underage drinking, but anecdotal evidence suggests that such actions are rare. The Licensing Act 2003 contains provisions to criminalise the sale of alcohol to minors, and also creates other criminal offences related to alcohol and those under the age of 18. So how does the specific criminal offence in the 2003 Act of selling alcohol to a minor differ from its predecessor in the Licensing Act 1964? And how can this be used against the various persons who can be involved in the sale of alcohol?

The Licensing Act 1964

Section 169(1) of the 1964 Act stated: 'in licensed premises the holder of the licence or his servant shall not. . . sell intoxicating liquor to a person under 18 or knowingly allow a person under 18 to consume intoxicating liquor in a bar nor shall the holder of the licence knowingly allow any person to sell intoxicating liquor to a person under 18' [our emphasis].

This created a problem. Sometimes the licensee was neither the owner of the alcohol nor the proprietor '“ particularly in relation to retail shops where the proprietor was a company. A company could not be a licence holder '“ who had to be a real person. The proprietor and/or his servants or employees would perform the physical sales of the alcohol. But they were not the servants of the licensee. They could not be prosecuted for selling alcohol to a minor.

Parliament tried to solve this problem. It inserted s.169A, which stated simply, 'A person shall be guilty of an offence if, in licensed premises, he sells intoxicating liquor to a person under 18' [emphasis added].

This did not work. Section 160 stated that it was an offence for 'a person' to sell or expose for sale any intoxicating liquor without holding a justices' licence. The owner of alcohol for sale would often be a company. The company itself could not hold a justices' licence. If the company were a person for the purposes of s.169A (above) then it would also be a person for the purposes of s.160. But the company that owned the alcohol could not hold a justices' licence. So it would be in breach of the law whenever its alcohol was exposed for sale. This would prevent any company from selling alcohol.

The meaning of the Licensing Act 2003

Section 146(1) of the 2003 Act bears some resemblance to s.169A of the 1964 Act. It states: 'A person commits an offence if he sells alcohol to an individual aged under 18.' The similarity is deceptive, but its meaning is very different.

The 1964 Act states that the offence occurs when a person sells alcohol to a minor in licensed premises. The only persons who could sell in licensed premises were either the licensee or those persons authorised by them. The 2003 Act contains no such restriction. It criminalises the sale of alcohol to a minor wherever it happens; in a licensed premises, in a park, or on a street.

If a person were to sell alcohol to a minor in, say, a park, there would be two potential sellers. One would be the person who physically performed the transaction. The other would be the person who owned the alcohol. Much would depend upon the owner's knowledge. If the owner had authorised the physical seller to sell the alcohol then the owner would also be the seller. If the owner had no knowledge of the sale or did not authorise the sale then it is unlikely that he would be a party to it. The physical seller would then have sold the alcohol without the owner's permission, knowledge or authorisation. If so, the physical seller may have committed a theft '“ disposing the property of another without permission.

Another situation would be where the owner had given authorisation for the seller to sell the alcohol subject to conditions. One could be that no sale be made to persons under the age of 18. Another, that the seller sell to no person who was drunk. Even if the seller acted outside of these conditions, they would still have sold the alcohol under the delegated authority of the owner, therefore the owner would have 'sold' the alcohol.

Section 146 of the 2003 Act, therefore, creates a criminal offence that is separate from its licensing provisions. It refers to the sale of alcohol anywhere (not just within a licensed premises).

The difference between the Acts

Under the 1964 Act, the owner of the alcohol in the form of the proprietor could not be a 'person' for the purposes of the offence of selling to a minor, because defining the owner as a 'person' within the act would produce impossible results, as stated above.

The 2003 Act is different. It operates a dual licensing system whereby there is a premises licence and a personal licence. The owner of the alcohol, if a company such as a retailer, will probably be the holder of the premises licence. It is permitted to sell alcohol only insofar as its premises licence permits. It can sell no alcohol from its premises if it has no premises licence. It may be that in some premises, such as chain pubs, a person other than the premises licence holder owns the alcohol to be sold, in which case the owner of the alcohol must give his authority to the premises licence holder to sell it. The premises licence holder becomes the servant of the owner of the alcohol. Either way, the owner of the alcohol is a party to the sale. The physical seller sells the alcohol for the owner. Therefore, the owner sells it. Where the owner is also the premises licence holder, the premises licence holder sells it.

A lawful sale, however, requires more than the premises licence. The premises licence requires that each sale of alcohol be authorised by a personal licence holder. Under the 2003 Act, the personal licence holder does not sell the alcohol. Instead, the personal licence holder authorises each sale. The personal licence holder may also be the owner of the alcohol. In that instance, he would be the seller of it '“ but only in his capacity as owner and not as a personal licence holder. The wording of the 1964 Act '“ 'holder of the licence or his servant' '“ has no relevance under 2003 Act. The holder of the personal licence has no servants. He does no more than authorise each sale. The servants, if any, will be of the premises licence holder.

Liability of the personal licence holder

As said, s.146 of the 2003 Act creates an offence of selling alcohol to a minor by any person in any place. If teenagers sold alcohol that belonged to a gang leader then the gang leader as the owner would also sell the alcohol. There is no personal licence holder or premises licence holder.

The criminal offence does not change with respect to alcohol sold within licensed premises. The owner of the alcohol, and his servant who performs the physical sale of it, are the sellers. There is no need to make any reference to, and there is within the section no reference to, the personal licence holder or the designated premises supervisor. The criminal offence remains the same where a person sells alcohol in a place which is or is not a licensed premises.

Considering the above, the personal licence holder does not 'sell' alcohol pursuant to the 2003 Act in their capacity as the personal licence holder. So when a servant of the premises licence holder sells alcohol to a minor, the personal licence holder cannot not be said also to sell it. Where this happens, therefore, it is unlikely that the personal licence holder commits any criminal offence in breach of s.146.

The designated premises supervisor

There is nothing in the act that defines the duties of the designated premises supervisor. The act does not stipulate their duties and/or responsibilities. In ss.140, 141, 143 and 144 the designated premises supervisor is identified as a prospective defendant. However, s.146 is silent about the activity of the designated premises supervisor.

The wording of s.141, as an example, states:

'1. A person to whom subsection (2) applies commits an offence if, on relevant premises, he knowingly '“

(a) sells or attempts to sell alcohol to a person who is drunk, or

(b) allows alcohol to be sold to such a person.

2. This subsection applies '“

(a) to any person who works at the premises in a capacity, whether paid or unpaid, which gives him authority to sell the alcohol concerned,

(b) in the case of licensed premises, to '“

(i) the holder of a premises licence in respect of the premises, and

(ii) the designated premises supervisor (if any) under such a licence.'

Here, parliament has included the offence of knowingly allowing alcohol to be served to a person who is drunk in a licensed premises. This is not the same as the wider, strict liability offence in s.146. Unlike s.146, s.141 mentions the designated premises supervisor specifically '“ in relation to allowing alcohol to be sold knowingly.

For the same reasons as those that relate to the personal licence holder, the designated premises supervisor is unlikely to be a seller of any alcohol that he does not physically sell. They do not own the alcohol in their capacity in that role. It is unlikely that the designated premises supervisor commits an offence contrary to s.146 where a servant of the premises licence holder sells alcohol to a minor.

Liability of the premises licence holder

The premises licence holder will usually be the owner of the alcohol. If a servant of the premises licence holder sells alcohol with the authority of its owner then the owner of the alcohol is also a seller. This is even where the servant has acted beyond the terms of his delegated authority, say, where the he sells alcohol to a minor when the owner of the alcohol has permitted him to sell alcohol only to those persons who are over 18 years of age.

Where the servant acts outside of their granted authority, the owner may raise the statutory defence of due diligence under s.146(6). This states that where the sale has happened by reason of the act or default of some other person, it is a defence to show that the owner exercised all due diligence to avoid committing it. It will be for the court to determine whether the owner did, in fact, exercise all due diligence.

Other options?

Aside from s.146, there are some other options. Section 145 creates the offence of allowing a minor to remain on licensed premises if unaccompanied by an adult who is over the age of 18. Section 147 the 2003 Act creates the offence of knowingly allowing alcohol to be sold on relevant premises. Sections 150-151 criminalise the knowing consumption of alcohol by a minor and knowingly delivering alcohol to a minor, respectively. The main difference is that these are not strict liability offences. They require knowledge. Also, the sections have their own ambiguities '“ for consideration at another time.

Conclusion on s.146

There is a fair argument that according to the Licensing Act 2003, it is the owner of the alcohol, usually the premises licence holder, and/or his servants or employees who perform the licensable activity of selling alcohol. It is unlikely that either the personal licence holder or the designated premises supervisor commits an offence in that capacity contrary to s.146(1) when an employee/servant of the premises licence holder sells alcohol to a minor. An exception to this is would be where they have aided and abetted the unlawful sale.

Although the premises licence holder may have sold the alcohol to a minor when his servant/agent has performed the physical sale, he can still raise the statutory defence of due diligence pursuant to s.146(6). It will be for the court to determine if this defence is to be successful.