Publication - Advice and guidance

Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities

Published: 16 Apr 2007
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9780755966080

Guidance on section 142 of the Licensing (Scotland) Act 2005 for licensing boards and local authorities.

94 page PDF

0 B

94 page PDF

0 B

Contents
Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities
10. Sale & supply of alcohol to children

94 page PDF

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10. Sale & supply of alcohol to children

Background

240. A key objective of the new system is the protection of children from harm. The system itself must be tested against that Licensing objective including whether or not it can, as proposed, adequately deliver that protection for children. Children need protection from environments which are wholly unsuitable and they need to be prevented from being placed in a position where it is easy for them to circumvent the law and obtain alcohol. The interests of communities would not be served by allowing any relaxation of controls which would undermine the Executive's extensive efforts to combat underage drinking.

241. The intention of the new legislation is to encourage licensed premises to become more child-friendly and to encourage an environment where families can socialise safely together. It replaces the old complicated system of children's certificates which allowed under-14s to enter a bar to eat a meal when accompanied by an adult between 11am and 8pm. Under the 2005 Act, the hours during which children will be permitted on a particular premises will be set out in the operating plan.

242. The Act sets out a range of provisions relating to the protection of children including the widening of existing offences.

243. The Act builds on the existing provisions in the 1976 Act by providing, in section 102, that a person commits an offence if he sells alcohol to an individual aged under 18 anywhere. However, Licensing Boards, when considering instituting proceedings for offences under the Act, are expected to be concerned primarily with offences involving the sale and consumption of alcohol licensed under a premises licence. It should be noted that a body corporate, partnership or unincorporated association (see section 141 of the Act) may be the subject of proceedings for an offence under section 102.

244. Licensing Boards are expected to maintain close contact with the police, young offenders' teams, Licensing Standards Officers and trading standards officers about the extent of unlawful sales and consumption of alcohol by children and young persons and to be involved in the development of any strategies to control or prevent these unlawful activities and to pursue prosecutions. For example, where as a matter of policy, warnings are given to retailers prior to any decision to prosecute in respect of an offence, it is important that each of the enforcement arms should be aware of the warnings each of them has given.

245. Ministers primarily see the development of these offences as having a deterrent effect on sales of alcohol to children by raising the risk of detection and by making the consequences of non-compliance significant.

Defences

246. The Act provides a defence to the offence of the sale of alcohol to children if the retailer of alcohol believed that the purchaser was 18 or over and either he took all reasonable steps to establish the purchaser's age or nobody could reasonably have suspected from a purchaser's appearance that he was under 18. The second limb of that defence would cover a case where the purchaser who was under 18 looked exceptionally old for his age. The accused will be deemed to have taken 'all reasonable steps' if he asked the individual for evidence of his age and that evidence would have convinced a reasonable person.

247. If it is proved by the prosecution that the evidence of age was such that no reasonable person would have been convinced by it (for example if the proof of age was either an obvious forgery or clearly belonged to another person), the defence will fail.

248. Ministers strongly support the PASS accreditation system which aims to approve and accredit various proof of age schemes that are in existence and this is reflected in the prescribing of PASS approved cards as acceptable proof of age under sections 102 and 108. PASS is the Proof of Age Standards Scheme launched in January 2003 by the British Retail Consortium and is supported by major retail associations, including those representing the licensed trade. It is an umbrella system, audited by the Trading Standards Institute, under which reliable proof of age card schemes will carry the same hologram logo in order that retailers can readily distinguish such cards from forgeries or cards issued under unreliable schemes. This ensures that such schemes maintain high standards, particularly in the areas of integrity and security. Ministers recommend that Licensing Boards should promote the PASS arrangements.

249. Boards should be aware that under the provisions of section 105 a Test Purchasing Pilot Scheme was launched in the Fife Constabulary area on 1 June 2006. This pilot will run for one year. It is designed to test the arrangements in place and develop a test Purchasing Protocol for alcohol related products before the main provisions of the Act come into force in 2009. Police should have regard to any protocol in place when carrying out test purchasing operations under the Act.

250. The need for and extent of test purchasing operations in any area is a matter for the police, in consultation with Licensing Standards Officers to judge on the basis of their local knowledge and available resources, which will establish how far such operations are necessary in each Licensing Board area.

Allowing sale of alcohol to children

251. Under section 103 of the Act, it is an offence knowingly to allow the sale of alcohol to an individual aged under 18, on relevant premises, which are defined in section 122. The offence may be committed by those who work at the premises, whether paid or unpaid, in a capacity that gives them the authority to prevent the sale. It should be noted that a body corporate, partnership or unincorporated association (see section 141 of the Act) may be the subject of proceedings for an offence under section 103.

Sale of liqueur confectionery to children under 16

252. The definition of liqueur confectionery is given in section 147 of the Act. It is an offence to sell liqueur confectionery to a child under 16. A defence is provided if the seller believed that the purchaser was 16 or over and if either he took all reasonable steps to establish the purchaser's age or if nobody could reasonably have suspected from the purchaser's appearance that he was under 16. The accused will be deemed to have taken 'all reasonable steps' if he asked the individual for evidence of his age, and that evidence was such that it would have convinced a reasonable person.

253. Although children aged 16 and 17 can buy liqueur confectionery (as defined in the Act) they cannot buy or be sold any other foodstuffs which contain alcohol of a strength exceeding 0.5 per cent.

Purchase of alcohol by or on behalf of children or young persons

254. The Act also makes it an offence for a child to buy or attempt to buy alcohol whether or not on licensed premises. Section 105 provides that the offence will not be committed if the child was asked by a police constable, acting in the course of their duty, to buy or attempt to buy alcohol in order to conduct test purchasing operations, designed to establish whether licensees and staff working in licensed premises are complying with the prohibition on underage sales.

255. The Act also makes it an offence for a person to act as an agent for a child in purchasing or attempting to purchase alcohol, for example, if a child gives money to an adult to buy alcohol in an off-licence for consumption by the child. The offence also applies where a member of a club has alcohol supplied to a child or attempts to do so.

256. A further offence occurs if a person buys or attempts to buy alcohol for consumption by a child on licensed premises, for example, where a father buys a drink for his son under eighteen in a pub. The offence also applies where a member or officer of a club has alcohol supplied to a child (in circumstances where by act or default he caused the supply) or attempted to do so. There is an exemption provided in respect of these offences so that they would not be committed if a person other than a child or young persons buys beer, wine or cider for a person aged 16 or 17 to consume with a meal on relevant premises, in circumstances where the 16 or 17 year old is accompanied by a person other than a child or young person. Licensing Boards will want to note that the exemption only applies while a meal is being consumed. It would not be sufficient for a person to claim that bar snacks amounted to a meal.

Consumption of alcohol by children or young persons

257. Under section 106 the Act it is also an offence for a child or young person knowingly to consume alcohol on relevant premises. Relevant premises are defined in section 122. The offence is not committed if the child inadvertently consumes the alcohol, for example, if his drink is spiked. It is also an offence knowingly to allow the consumption of alcohol by a child on relevant premises. Those who can commit this offence are any person who works whether paid or unpaid. at the premises in a capacity that gives him the authority to prevent the consumption and, in the case of a supply by a club, any officer or member of a club who is present at the time of the consumption in a capacity which authorises him to prevent it.

Delivering alcohol to children or young persons

258. It is an offence for someone working, whether paid or unpaid, on relevant premises knowingly to deliver to an individual under 18 alcohol which is sold on the premises. The offence would cover, for example, circumstances where a child takes delivery of a consignment of alcohol ordered by an adult by telephone (in a case where the exceptions mentioned below do not apply). It is also an offence for a person working, whether paid or unpaid, on relevant premises, and in a position which gives him authority to prevent it, knowingly to allow another person to deliver alcohol supplied on relevant premises to individuals under 18.

259. This offence would cover, for example, a person who authorises a delivery of the sort mentioned above in the knowledge that the recipient will be a child. The offence also applies in the case of a delivery by or on behalf of a club or to the order of a member or officer of the club, where the delivery is allowed by a person working on the premises in a capacity which gives him authority to prevent it. The offences are not committed if the alcohol is delivered to the place of work of the purchaser or person who is to be supplied with the alcohol, for example, where the job, whether paid or unpaid, of the child who took delivery of the alcohol involves delivery of alcohol (for example, where a 16 year old office worker is sent to collect a delivery for his employer), nor where the alcohol is sold or supplied for consumption on the relevant premises.

Sending a child to obtain alcohol or young persons

260. Under the Act, it is an offence knowingly to send a child to obtain alcohol which is sold or to be sold for consumption off the premises. This offence would cover, for example, circumstances where a parent sends their child to an off-licence to collect some alcohol which had been bought over the telephone. The offence is committed regardless of whether the child is sent to the actual premises from where the alcohol is sold or supplied, or whether he is sent to other premises to which the alcohol has been sent. The offence will not be committed where the child works, whether paid or unpaid, at the premises in question and his job involves taking deliveries of alcohol. The offence is also not committed if the child is sent by a police, in the course of their duty, to obtain alcohol as a test purchaser to test the compliance of the retailer or club with the prohibition on underage sales.

Prohibition of unsupervised sales by children

261. It is an offence under the Act for any responsible person to knowingly allow an individual under the age of 18 to sell, supply or serve alcohol on relevant premises. The offence may be committed by:

  • a premises licence holder, named premises manager or someone aged 18 or over authorised by them; or

262. The Act provides that the offence is not committed where any sale by a child or young person of alcohol is made for consumption off the premises or the alcohol is sold or supplied for consumption with a meal in a part of the premises used only for this purpose. However, the sale or supply must also be authorised by a responsible person or any other person over the age of 18 who is authorised by a responsible person for the purposes of section 107 of the Act. The effect of this exception is that, for example, a child or young person working as a waiter or waitress in a restaurant is able to serve alcohol lawfully in a restaurant.


Contact

Email: Central Enquiries Unit ceu@gov.scot