An Epic case of trade injustice

There should be a greater focus on youngsters who break the law

• Conscientious operators have systems in place to prevent underage sales.

By Jack Cummins

CONNIVING underage youngsters who commit the offence of purchasing alcohol escape the consequences. Conscientious operators whose robust systems are designed to prevent such sales face dire consequences in the event of a slip up.

That totally unacceptable state of affairs is illustrated by a recent High Court appeal decision involving the Epic Group, operator of nightclubs and pubs in Aberdeen.
Two girls, both aged just under 18, chose clothes and hair styles to make themselves look older, managing to escape the attention of Epic’s door supervisor and, once inside, were able to buy drinks.
Epic found itself in the local Justice of the Peace Court, where it was convicted of the underage sales and fined £1000, paving the way for the possible suspension of its premises licence.
It was clear from the evidence accepted by the Justice that Epic had gone to great lengths to implement its Challenge 25 policy.
The age verification procedures were vouched by appropriate signage and set out in extensive training materials.
In particular, provision was made for challenges at three levels: by door staff, stewards patrolling the floor and staff serving alcohol.
An employee who departed from the rules was likely to be dismissed.
Yet, the Justice simply didn’t agree that the operator had exercised “all due diligence” to prevent the offence.
Instead, he adopted a ‘strict liability’ approach of the type I’ve seen time and time again in licensing board decisions.
In other words, if a diligence system ever fails – no matter how good – it has to be the fault of the system. The standard is one of absolute perfection.
Quite properly, Epic appealed to the High Court, where three judges quashed the conviction.
It was quite clear that the Justice had arrived at a conclusion which “no reasonable justice” could have reached on the accepted evidence.
With some very welcome common sense, the court said that the failure to challenge the two girls was not of itself a ‘due diligence’ failure: it could equally have been that the failure of all three levels of check was because the youngsters had deliberately dressed up to overcome the Challenge 25 hurdle.

While Epic was ultimately vindicated, this is an unsatisfactory case.

The judges added: “No doubt some other step can always, in retrospect, be identified. That does not, of itself, however, show that the statutory test of due diligence has not been met.”
While Epic was ultimately vindicated, for a number of reasons this a very unsatisfactory case.
On no reasonable view could a decision to prosecute have been justified if there had been a proper evaluation of the staff training systems.
Epic’s appeal to the High Court should not have been opposed by the prosecution authorities.
Smaller businesses might have found themselves unable to afford the substantial costs of launching an appeal.
But, more fundamentally, there’s something really wrong when those who deliberately set out to commit a crime end up scot-free, actually giving evidence against the licence holders – the real victims in this sorry story.
As Mike Wilson of Epic Group told SLTN (March 6), it’s about time that the victim of a crime should be protected, and action taken against the instigators.
Rather than treating the underage purchasers as witnesses, the authorities should be approaching the operators to be witnesses.
We often hear the worthy view that the law should support responsible operators and ‘partnership working’ should be encouraged.
I reckon these objectives would be better supported if it was made absolutely plain that persons aged under 18 who set out to break the law by tricking responsible licensees can expect to land in court and end up with a criminal record.
It would be more than refreshing to find a licensee’s staff giving evidence against the real offenders – rather than the other way around.

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