Online delivery is open to risks

Retailers who don’t pursue due diligence can be held accountable

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

Earlier this year I looked at growing concerns over online alcohol orders.
It’s claimed the expansion of internet sales makes alcohol much more available and sits very uneasily with the concept of overprovision; and there’s a danger that deliveries might get into the hands of so-called underage drinkers.

Coincidentally, on-trade operators – pubs with a substantial food offer as well as restaurants – are now starting to move into the home delivery market; and in recent weeks I’ve attended a number of licensing board meetings where applicants have been grilled over the systems they propose to put in place with a view to preventing breaches of the law.

Predictably, Challenge 25 procedures dominated the discussions bearing in mind that, of course, the delivery of alcohol to a person under 18 is an offence.

At least one board requires a record every time a sale is declined.

The law here is peppered with quirks.

Generally, there must be an age verification policy setting out the steps taken to establish the age of a person attempting an alcohol purchase on the premises where it appears that the customer may be under the age of 25 (or an older age specified in the policy).

But where the transaction takes place online or over the phone, the person placing the order isn’t physically present on the premises so the retailer can’t possibly form a ‘face-to-face’ view as to the customer’s age.

What’s more, where an order is taken at one set of premises and despatched from elsewhere (as is likely in the case of an online transaction), the sale is treated as taking place at the “despatch premises” – but in such a case the requirement to operate Challenge 25 is disapplied.

Then there’s the matter of refusals books.

• Challenge 25 is difficult to enforce for online sales, but rules do apply.

At least one licensing board is of the view that the law requires a record to be made where a delivery driver declines to complete the delivery because it appears that it would be handed over to a person under the age of 18 – or a person appearing to be under 25 – who can’t produce satisfactory proof of age.

A board might impose a condition obliging the licence holder to operate such a system,  but it’s not demanded by the Licensing (Scotland) Act 2005.

What about training for delivery drivers?
That’s not required either.

Could the integrity of delivery arrangements be investigated using test purchasing?
Probably not: it’s very doubtful whether the statutory authority for police test purchasing extends to the delivery part of a sale.

But while there are gaping holes in the legislation, retailers’ licences are still exposed to considerable risk if they don’t give careful thought to their procedures.

First of all, they need to familiarise themselves with the record-keeping requirements set out in the licensing Act.
There’s no room here to set out all the detail; but, in essence, sales must be recorded in a ‘day book’ kept on the premises and in a delivery book or invoice carried by the driver.

The delivery can only be made to the address set out in those documents – so a ‘leave with a neighbour’ instruction from the customer simply isn’t an option.

At the point of delivery, the usual proof-of-age credentials should be requested if the driver has the slightest doubt as to the age of the person about to accept the alcohol.

Despite the lack of a training requirement, it’s essential that the messengers are thoroughly drilled in their obligations.
Where deliveries are contracted out to a courier I’d always advise clients to carry out a scrupulous check of the instructions given to the company’s employees: after all, your licence is placed in their hands.

These steps are absolutely crucial if a ‘due diligence’ defence is to be made in the event of an offence being committed.
Finally, there’s one other safeguard that might be built in: only accept payments by credit or debit card and insist that the card used for the purchase is produced to the driver.

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