Due diligence must offer trade defence

Forthcoming Alcohol Act puts age-restricted sales in spotlight0018_1

NEW legislation coming in on October 1 puts into stark relief the first commandment in the licensee’s bible: do not sell alcohol to persons under 18.

The commission of that sin could well lead to the suspension or loss of a licence – perhaps even the ruination of a business.
The introduction on October 1 of a mandatory ‘challenge 25’ age verification policy, under the new Alcohol Act, is designed to eliminate such cases.
No one would challenge the view that irresponsible retailers are a menace.
But when failed test purchases are linked to last month’s rioting and looting in England and licensees who take a ‘zero tolerance’ approach to underage sales are branded “negligent” and “irresponsible”, it’s clear that conscientious licensees are operating in an enforcement environment that is losing a sense of proportion.
I reckon operators fall broadly into three categories.
In the first group are those who recklessly and willfully disregard their obligations.
Take a grocer’s shop where none of the staff have received any training and profit is always put before responsibility. In fact, as happened in one case, children in school uniform are regularly allowed to purchase alcohol. That class of licence holder should simply be driven out of the trade.
Then there are the ‘tick the box’ operators with a minimalist approach falling far short of due diligence who fully deserve a loud wake-up call.
And finally there are scrupulous operators who take every conceivable step to make sure that alcohol does not fall into the hands of persons under 18.
One example is the shop owner who spent thousands upgrading his till system to incorporate age-check prompts, operated a ‘challenge 25’ policy supported by signage, had proper staff training records and warned his staff that an underage sale of alcohol would result in instant dismissal.
None of these steps saved him from a premises licence review hearing after a failed test purchase, despite a ‘pass’ when a follow-up test took place.

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Licensing boards want to take a robust line but it’s unreasonable to think a properly policed system should never fail.

The result was a written warning. It could easily have been much worse.
In my view, staining the licence holder’s reputation in these circumstances demonstrates a demand for a standard of absolute perfection that is unachievable.
Licensing boards want to be seen to be taking a robust line for the best of motives, but it is simply unreasonable to hold that a properly policed system should never fail.
Almost no case law has emerged in this area since the start of the new licensing Act. That’s almost certainly because licence holders of limited means will not be inclined to incur the expense of a challenge where they receive a warning or a short period of suspension.
However, last year the two-month suspension of a small supermarket’s premises licence was quashed on appeal. The Sheriff Principal did issue a written judgment, but when announcing his decision from the bench he made it plain that the occurrence of a single instance of an underage sale of alcohol was not in itself sufficient to establish a ground for review without more material than that before the board.
And, bearing in mind that licensing boards never see the test purchaser, the Sheriff Principal said the board had no means of assessing whether the youngster was so obviously under 25 as to demonstrate irresponsibility on the part of the cashier when she entered that age in the store’s computerised till system.
Very fairly, the licensing board did not oppose the licence holder’s application for “interim recall”. That’s a procedure that sets aside a suspension or a licence revocation until an appeal has been heard because, of course, the penalty would otherwise have immediate effect under the new law.
Imagine a situation in which a business suffers substantial economic loss and yet is vindicated when the matter comes to court.
Sanctions ought not to come into immediate effect, save in exceptional circumstances, and licensing boards should take into account the ‘all due diligence’ defence available in any criminal proceedings against the licensee.
Otherwise, there’s a potential for gross injustice that has no place in our system.