Show Summary Details
Page of

Licensing and Offences Relating to Alcohol 

Licensing and Offences Relating to Alcohol
Chapter:
Licensing and Offences Relating to Alcohol
Author(s):

Glenn Hutton

, Gavin McKinnon

, and Paul Connor

DOI:
10.1093/law/9780198829836.003.0016
Page of

Subscriber: null; date: 21 March 2019

4.16.1 Introduction

The sale, supply and consumption of alcohol, along with the proper control and management of relevant premises, is a significant part of everyday policing.

This chapter only provides a brief overview of these matters and concentrates on the specific offences and police powers contained within the relevant legislation.

4.16.2 Licensable Activities

The Licensing Act 2003, s. 1 states:

  1. (1) For the purposes of this Act the following are licensable activities—

    1. (a) the sale by retail of alcohol,

    2. (b) the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club,

    3. (c) the provision of regulated entertainment, and

    4. (d) the provision of late night refreshment.

Keynote

A licensable activity may be carried on under a premises licence or in circumstances where the activity is a permitted temporary activity (s. 2(1)).

There is a raft of exemptions to licensable activities which include aircraft, vessels, hovercraft, ports, railway vehicles, premises occupied by the armed forces and premises exempt for national security purposes (ss. 173 to 175).

In the Act, ‘alcohol’ means spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor (in any state) (s. 191(1)).

4.16.3 Licensing Objectives

The purpose of the system of licensing for licensable activities is to promote four fundamental objectives—the licensing objectives (s. 4(2)). These objectives are:

  1. (a) the prevention of crime and disorder;

  2. (b) public safety;

  3. (c) the prevention of public nuisance; and

  4. (d) the protection of children from harm.

Keynote

The aim of the licensing objectives is to ensure that carrying on licensable activities on or from premises is done in the public interest. The third objective, the prevention of public nuisance, will not extend to every activity where annoyance may be caused to other people but will cover behaviour which, when balanced against the public interest, is found to be unacceptable. The fourth objective is concerned with the harm to children beyond matters relating to physical safety.

4.16.4 The Licensing System

The 2003 Act sets out a single licensing system that governs all premises used for licensable activities. The system is administered by licensing authorities that include councils of a district, county or borough within England and Wales (s. 3(1)).

The key licensing authorisations that may be issued are:

  • Premises Licence

  • Personal Licence

  • Club Premises Certificate

  • Temporary Event Notice.

Carrying on a licensable activity other than in accordance with a premises licence, club premises certificate or temporary event notice is an offence (s. 136).

4.16.4.1 Premises Licence

A ‘premises licence’ means a licence in respect of any premises, which authorises them to be used for one or more licensable activities (s. 11).

The Licensing Act 2003, s. 16 states:

  1. (1) Subject to subsections (2) and (2A), the following persons may apply for a premises licence—

    1. (a) a person who carries on, or proposes to carry on, a business which involves the use of the premises for the licensable activities to which the application relates,

    2. (b) a person who makes the application pursuant to—

      1. (i) any statutory function discharged by that person which relates to those licensable activities, or

      2. (ii) any function discharged by that person by virtue of Her Majesty’s prerogative,

    3. (c) a recognised club,

    4. (d) a charity,

    5. (e) the proprietor of an educational institution,

    6. (f) a health service body,

    7. (g) a person who is registered under Part 2 of the Care Standards Act 2000 in respect of an independent hospital, in Wales,

    8. (ga) a person who is registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the carrying on of a regulated activity (within the meaning of that Part) in an independent hospital in England,

    9. (h) the chief officer of police of a police force in England and Wales,

    10. (i) a person of such other description as may be prescribed.

  2. (2) An individual may not apply for a premises licence unless he is aged 18 or over.

  3. (2A) An individual who is resident in the United Kingdom may not apply for a premises licence authorising premises to be used for a licensable activity within section 1(1)(a) or (d) unless the individual is entitled to work in the United Kingdom.

Keynote

The premises licence will name a designated premises supervisor who holds a valid personal licence. Every supply of alcohol under the licence must be made by a personal licence holder or a person authorised by such a holder (s. 19).

A constable or an authorised person may require production of a premises licence or a certified copy of it (s. 57(5)), and a person who fails, without reasonable excuse, to produce the licence, or certified copy, commits a summary offence (s. 57(7)).

A premises licence may be reviewed by a licensing authority where it is considered a licensee is failing to take sufficient measures to prevent public nuisance, or where the police consider that measures put in place to prevent crime and disorder are not being effective.

4.16.4.2 Personal Licences

The supply of alcohol is regulated generally by the granting of a personal licence to an individual. The Licensing Act 2003, s. 111 states:

  1. (1) In this Act ‘personal licence’ means a licence which—

    1. (a) is granted by a licensing authority to an individual, and

    2. (b) authorises that individual to supply alcohol, or authorise the supply of alcohol, in accordance with a premises licence.

  2. (2) In subsection (1)(b) the reference to an individual supplying alcohol is to him—

    1. (a) selling alcohol by retail, or

    2. (b) supplying alcohol by or on behalf of a club to, or to the order of, a member of the club.

Keynote

The licensing of individuals is separate from the licensing of premises and enables personal licence holders to move from one set of premises to another.

A mainstay of the personal licensing system is the ability to refuse to grant, or to suspend/revoke the licence as a result of the applicant’s or licensee’s previous character or other conduct.

A personal licence must be held by the designated premises supervisor and more than one individual at the licensed premises may hold a personal licence. It is not necessary for all staff to be licensed, but all supplies of alcohol under a premises licence must be made by or under the authority of a personal licence holder.

A constable or an authorised person may require production of a personal licence (s. 135(2)), and a person who fails without reasonable excuse to produce the licence commits a summary offence (s. 135(4)).

4.16.4.3 Club Premises Certificate

A club premises certificate may be granted by a licensing authority in respect of premises occupied by, and habitually used for the purposes of, a club. The premises may be used by the club for one or more qualifying club activities specified in the certificate, and the club is a qualifying club in relation to each of those activities (s. 60).

The general conditions that apply for a club to qualify as a qualifying club are listed under s. 62 and are:

  • persons may not be admitted to membership, or be admitted, as candidates for membership, to any of the privileges of membership without an interval of at least two days between their nomination or application for membership and their admission;

  • persons becoming members without prior nomination or application may not be admitted to the privileges of membership without an interval of at least two days between their becoming members and their admission;

  • the club is established and conducted in good faith as a club;

  • the club has at least 25 members;

  • alcohol is not supplied, or intended to be supplied, to members on the premises otherwise than by or on behalf of the club.

Keynote

Clubs falling within this category will include the Royal British Legion, Working Men’s Clubs, cricket and rugby clubs, where activities are carried on from private premises and because alcohol and entertainment are provided otherwise than for profit. Generally, ‘nightclubs’ do not fall within this category.

Where a club holds a club premises certificate, a responsible authority or any other person may apply to the relevant licensing authority for a review of the certificate (s. 87(1)). Where conditions are imposed following a review of a club premises certificate they must be proportionate in achieving the licensing objectives (R (On the Application of Merlot 73 Ltd) v City of Westminster Magistrates’ Court [2013] EWHC 3416 (Admin)).

A constable or authorised person may require production of a club premises certificate (s. 94(7)) and failure to produce a certificate without reasonable excuse is a summary offence (s. 94(9)).

A constable may enter and search the club premises where they have reasonable cause to believe that an offence under s. 4(3)(a), (b) or (c) of the Misuse of Drugs Act 1971 (supplying or offering to supply, or being concerned in supplying or making an offer to supply, a controlled drug), has been, is being, or is about to be committed there, or there is likely to be a breach of the peace there. The constable may use reasonable force if necessary (s. 97).

4.16.4.4 Temporary Event Notice

A temporary event notice, issued by the licensing authority, is required where a person (the premises user) intends to carry out a licensable activity on unlicensed premises or wishes to operate outside the terms of their existing premises licence or club premises licence (s. 100).

A ‘licensable activity’ is the sale or supply of alcohol, regulated entertainment (e.g. music, singing or dancing), or provisions of late night refreshment (hot food or drink between the hours of 2300 and 0500). Such activities might include a publican engaged to run a temporary bar for a wedding at a venue not licensed for the sale of alcohol, or a person not being the holder of a personal licence who may wish to run a bar and provide a band at a party to celebrate a significant anniversary.

A personal licence holder is permitted fifty temporary event notices per calendar year and an individual who is not the holder of a personal licence is permitted five temporary event notices a year.

Individual premises are limited to fifteen temporary event notices in a calendar year. A temporary event notice can last up to 168 hours (seven days) but in total the 15 temporary event notices cannot exceed 21 days in a calendar year.

A temporary event notice can only be used when the number of persons at the event (including performers) does not exceed 499 persons at any one time.

Keynote

Where the police consider the temporary event notice would undermine the ‘crime prevention objective’ they must notify the premises user and licensing authority of their objection. The licensing authority may withdraw the temporary event notice or it may be modified so that it no longer undermines the objective (s. 104).

At any reasonable time, a constable or an authorised person may enter premises to which a temporary event notice relates to assess the likely effect of the notice on the promotion of the crime prevention objective (s. 108(1)). Obstructing a constable or authorised officer is an offence (s. 108(3)).

On the day of the event a copy of the temporary event notice and any statement of conditions attached to it following an objection, must be prominently displayed at the premises or be in possession of the premises user or their nominated representative. Failure to comply with these requirements is an offence (s. 109(4)) and failure to produce a temporary event notice when required by a constable or authorised person is also an offence (s. 109(8)).

4.16.5 Police Powers

The Act creates a number of powers for police officers and other authorised persons to enter and inspect premises, to investigate licensable activities, to investigate offences, and to require the production of documents.

4.16.5.1 Power of Entry to Investigate Licensable Activities

Where a constable or an authorised person has reason to believe that any premises are being, or are about to be, used for a licensable activity, he may enter the premises with a view to seeing whether the activity is being, or is to be, carried on under and in accordance with an authorisation (s. 179(1)). An authorised person exercising the power must, if so requested, produce evidence of his authority to exercise the power (s. 179(2)).

A person exercising the power conferred by this section may, if necessary, use reasonable force (s. 179(3)), and a person commits an offence if he intentionally obstructs an authorised person exercising a power conferred by this section (s. 179(4)).

4.16.5.2 Right of Entry to Investigate Offences

A constable may enter and search any premises in respect of which he has reason to believe that an offence under this Act has been, is being or is about to be committed (s. 180(1)), and may, if necessary, use reasonable force (s. 180(2)).

4.16.6 Regulated Entertainment

Detailed guidance on the provision of regulated entertainment is contained in sch. 1 to the Act.

Regulated entertainment covers entertainment, provided solely or partly for members of the public, or exclusively to club members and their guests, or for which a charge is made, which is provided for profit (which will include raising money for charities).

The forms of entertainment regulated by the Act include:

  • plays, including both performance and rehearsal;

  • films, or any exhibition of moving pictures;

  • all indoor sporting events;

  • outdoor boxing and wrestling matches;

  • performance of live music and the playing of recorded music;

  • performance of dance.

Schedule 1 provides a number of exemptions to regulated entertainment, for example, entertainment at a garden fete, Morris dancing (or dancing of a similar nature), and entertainment provided on vehicles in motion.

Keynote

The Policing and Crime Act 2017, s. 134 creates an offence of possessing pyrotechnic articles at a musical event that is authorised by a premises licence issued under the Licensing Act 2003 to provide regulated entertainment in the form of a performance of live music (Policing and Crime Act 2017 (Possession of Pyrotechnic Articles at Musical Events) Regulations 2017 (SI 2017/306)). A ‘pyrotechnic article’ means an article that contains explosive substances, or an explosive mixture of substances, designed to produce heat, light, sound, gas or smoke, or a combination of such effect, through self-sustained exothermic chemical reactions. It does not include a match or an article specified in associated regulations. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks and/or a fine.

4.16.7 Offences

The main offences with which police officers will be involved are contained in the 2003 Act. These follow a fairly common-sense approach imposing requirements and obligations on those people who could have acted to prevent the relevant conduct or who could have made the relevant request, e.g. of a disorderly person to leave licensed premises.

4.16.7.1 Unauthorised Licensable Activities

Offence Licensing Act 2003, s. 136

  • Triable summarily

  • Six months’ imprisonment and/or a fine up to £20,000

The Licensing Act 2003, s. 136 states:

  1. (1) A person commits an offence if—

    1. (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or

    2. (b) he knowingly allows a licensable activity to be so carried on.

Keynote

This offence requires that the person carried on (or attempted to carry on) the licensable activity either in a manner not authorised by or in accordance with an appropriate authorisation, or knowingly allowing the activity to be carried on in that way. Therefore the element of knowledge on the part of the defendant is essential in any case where he/she is not directly involved.

If the relevant authorisation (e.g. a premises licence) has certain conditions attached and they are not adhered to, this offence would be committed.

‘Authorisation’ here means a premises licence, a club premises certificate or a temporary event notice in respect of which the relevant conditions have been met. While some offences apply only to ‘relevant premises’, the above is wider than that and applies to any premises.

Where the licensable activity in question is the provision of regulated entertainment, a person will generally not commit an offence under this section if his/her only involvement in the provision of the entertainment is that he/she played the music, performed the dance etc. (s. 136(2)).

The statutory defence of due diligence applies to this offence.

4.16.7.2 Exposing Alcohol for Unauthorised Sale

Offence Licensing Act 2003, s. 137

  • Triable summarily

  • Six months’ imprisonment and/or a fine up to £20,000

The Licensing Act 2003, s. 137 states:

  1. (1) A person commits an offence if, on any premises, he exposes for sale by retail any alcohol in circumstances where the sale by retail of that alcohol on those premises would be an unauthorised licensable activity.

  2. (2) For that purpose a licensable activity is unauthorised unless it is under and in accordance with an authorisation.

Keynote

‘Sale by retail’ is specifically defined in s. 192. In essence it excludes wholesale transactions made with people (including personal licence holders) in the course of their trade and sales for consumption off the premises.

This offence concerns retail sales of alcohol on premises where to do so lawfully would ordinarily require some form of authorisation. There is no requirement for the person to have done so ‘knowingly’ or with any particular state of mind, neither is there a need for any sale actually to have taken place, and the exposing for sale under the relevant circumstances makes the offence complete.

While some offences apply only to ‘relevant premises’, the above is wider than that and applies to any premises.

There is a further summary offence (punishable by a fine) for a person to have in his/her possession or under his/her control alcohol which he/she intends to sell by retail or supply by or on behalf of a club to a member of the club in circumstances where that activity would be an unauthorised licensable activity (s. 138). The statutory defence of ‘due diligence’ applies to both these offences.

The court by which a person is convicted of either of these offences may order the alcohol in question (and any container), to be forfeited and either destroyed or dealt with in such other manner as the court may order (s. 137(4)).

4.16.7.3 Defence of Due Diligence

The Licensing Act 2003 contains a specific defence of ‘due diligence’, and s. 139 states:

  1. (1) In proceedings against a person for an offence to which subsection (2) applies, it is a defence that—

    1. (a) his act was due to a mistake, or to reliance on information given to him, or to an act or omission by another person, or to some other cause beyond his control, and

    2. (b) he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Keynote

The offences to which this defence applies are:

  • s. 136(1)(a) (carrying on unauthorised licensable activity);

  • s. 137 (exposing alcohol for unauthorised sale); or

  • s. 138 (keeping alcohol on premises for unauthorised sale).

The defence of due diligence has two limbs and both (a) and (b) must be shown for it to apply.

4.16.7.4 Allowing Disorderly Conduct on Licensed Premises

Offence Licensing Act 2003, s. 140

  • Triable summarily

  • Fine

The Licensing Act 2003, s. 140 states:

  1. (1) A person to whom subsection (2) applies commits an offence if he knowingly allows disorderly conduct on relevant premises.

  2. (2) This subsection applies—

    1. (a) to any person who works at the premises in a capacity, whether paid or unpaid, which authorises him to prevent the conduct,

    2. (b) in the case of licensed premises, to—

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

      2. (ii) the designated premises supervisor (if any) under such a licence,

    3. (c) in the case of premises in respect of which a club premises certificate has effect, to any member or officer of the club which holds the certificate who at the time the conduct takes place is present on the premises in a capacity which enables him to prevent it, and

    4. (d) in the case of premises which may be used for a permitted temporary activity by virtue of Part 5, to the premises user in relation to the temporary event notice in question.

Keynote

‘Relevant premises’ means licensed premises, premises in respect of which there is in force a club premises certificate, and premises which may be used for a permitted temporary activity by virtue of part 5 (s. 159).

It will be important to note the distinctions between the roles of the people mentioned in s. 140(2)(a)–(d). In the case of licensed premises (and premises which may be used for a permitted temporary activity by virtue of part 5), the requirements are fairly straightforward. In such cases the holder of the premises licence, the designated premises supervisor or the premises user respectively will be liable and it will only be necessary to prove that he/she knowingly allowed disorderly conduct on relevant premises. In the case of premises where a club premises certificate is in effect, it will be necessary, in addition, to show that the defendant was present on the premises and in a capacity that enabled him/her to prevent the conduct.

Whether the conduct involved was disorderly will be a question of fact to be decided in all the circumstances.

4.16.7.5 Sale of Alcohol to a Person who is Drunk

Offence Licensing Act 2003, s. 141

  • Triable summarily

  • Fine

The Licensing Act 2003, s. 141 states:

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

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

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

  2. (2) This subsection applies—

    1. (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,

    2. (b) in the case of licensed premises, to—

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

      2. (ii) the designated premises supervisor (if any) under such a licence,

    3. (c) in the case of premises in respect of which a club premises certificate has effect, to any member or officer of the club which holds the certificate who at the time the sale (or attempted sale) takes place is present on the premises in a capacity which enables him to prevent it, and

    4. (d) in the case of premises which may be used for a permitted temporary activity by virtue of Part 5, to the premises user in relation to the temporary event notice in question.

Keynote

For ‘relevant premises’ see para. 4.16.7.4.

The people to whom this offence applies are those in the roles that would allow them to take the appropriate action in preventing the offence.

This offence is not restricted to retail sales and will cover all sales, including those for consumption off the premises.

This section applies in relation to the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club as it applies in relation to the sale of alcohol (s. 141(3)).

4.16.7.6 Obtaining Alcohol for a Person who is Drunk

Offence Licensing Act 2003, s. 142

  • Triable summarily

  • Fine

The Licensing Act 2003, s. 142 states:

  1. (1) A person commits an offence if, on relevant premises, he knowingly obtains or attempts to obtain alcohol for consumption on those premises by a person who is drunk.

Keynote

For ‘relevant premises’ see para. 4.16.7.4.

The requirement to show that the defendant acted knowingly is critical to prove this offence.

The intended consumption must be on the premises where the alcohol is obtained/attempted to be obtained.

4.16.7.7 Failure to Leave Licensed Premises

Offence Licensing Act 2003, s. 143

  • Triable summarily

  • Fine

The Licensing Act 2003, s. 143 states:

  1. (1) A person who is drunk or disorderly commits an offence if, without reasonable excuse—

    1. (a) he fails to leave relevant premises when requested to do so by a constable or by a person to whom subsection (2) applies, or

    2. (b) he enters or attempts to enter relevant premises after a constable or a person to whom subsection (2) applies has requested him not to enter.

  2. (2) This subsection applies—

    1. (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,

    2. (b) in the case of licensed premises, to—

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

      2. (ii) the designated premises supervisor (if any) under such a licence,

    3. (c) in the case of premises in respect of which a club premises certificate has effect, to any member or officer of the club which holds the certificate who is present on the premises in a capacity which enables him to make such a request, and

    4. (d) in the case of premises which may be used for a permitted temporary activity by virtue of Part 5, to the premises user in relation to the temporary event notice in question.

Keynote

For ‘relevant premises’ see para. 4.16.7.4.

The above offence requires that the person concerned is shown to be either drunk or disorderly.

The absence of a reasonable excuse is an important ingredient in this offence, and it should be shown that the request to leave/not to enter was both heard and understood by the defendant.

On being requested to do so by a person to whom s. 143(2) applies, a constable must:

  • help to expel from relevant premises a person who is drunk or disorderly;

  • help to prevent such a person from entering relevant premises.

(s. 143(4))

If requested to do so by one of the above people, a police officer is under a duty (rather than simply having a power) to help them expel anyone who is drunk or disorderly. The wording of the section means that police officers are also under a similar duty to help to prevent such a person from entering relevant premises.

In assisting the removal of an individual a police officer is entitled to use force (Semple v Luton and South Bedfordshire Magistrates’ Court [2009] EWHC 3241 (Admin)).

4.16.7.8 Drunk and Disorderly

Offence Criminal Justice Act 1967, s. 91(1)

  • Triable summarily

  • Fine

The Criminal Justice Act 1967, s. 91 states:

  1. (1) Any person who in any public place is guilty, while drunk, of disorderly behaviour shall be liable . . .

Keynote

In Carroll v DPP [2009] EWHC 554 (Admin) the court stated that drunk and disorderly was one of the most basic of offences and that it required proof of three elements: the accused was drunk; he/she was in a public place; and he/she was guilty of disorderly behaviour.

The drunkenness must be as a result of excessive consumption of alcohol; if the person’s state is caused by some other intoxicant (e.g. glue solvents), the offence is not made out (Neale v R.M.I.E. (a minor) (1985) 80 Cr App R 20). The same ruling applies to a person ‘found drunk’ in a public place (Lanham v Rickwood (1984) 148 JP 737).

‘Drunkenness’ here means where the defendant has taken intoxicating liquor (alcohol) to an extent that affects his/her steady self-control (per Goff LJ in Neale).

Where there are several causes of a person’s incapacitated state, one of which is alcohol, a court can find that the person was in fact ‘drunk’, even though some additional intoxicant had an exacerbating effect on his/her loss of ‘steady self-control’.

In McMillan v CPS [2008] EWHC 1457 (Admin), it was held that where a police officer took hold of a drunken person by the arm to steady her for her own safety it was not an arrest. The circumstances entailed the officer leading the drunken person from a private garden to a public place. It was then legitimate for the officer to arrest for this offence where the accused displayed disorderly behaviour. However, this offence is not committed where a person did not commit any disorderly act until after the arrest (H v DPP [2005] EWHC 2459 (Admin)).

This offence is a ‘penalty offence’ for the purposes of s. 1 of the Criminal Justice and Police Act 2001. Note that a penalty notice for s. 91(1) cannot be given to a person aged under 18, and a constable giving a notice to a person other than at a police station does not need to be in uniform (Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013/903)).

Where a person is arrested for committing this offence, under the powers contained within s. 24 of the Police and Criminal Evidence Act 1984, a constable may take him/her to an approved treatment centre for alcoholism (a ‘detoxification’ centre) and he/she will be treated as being in lawful custody for the purposes of that journey (see s. 34(1) of the Criminal Justice Act 1972).

The conduct of passengers who are drunk on an aircraft has a potential impact on the safety of the aircraft and the people therein, therefore they can be dealt with under s. 61 of the Civil Aviation Act 1982 and the relevant regulations made thereunder (R v Tagg [2001] EWCA Crim 1230 and Air Navigation Order 2009 (SI 2009/3015, part 19) made under the Civil Aviation Act 1982 and the Airports Act 1986).

4.16.7.9 Found Drunk

Offence Licensing Act 1872, s. 12

  • Triable summarily

  • Fine

The Licensing Act 1872, s. 12 states:

Every person found drunk in any highway or other public place, whether a building or not, or on any licensed premises, shall be liable . . .

Every person who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded firearms, shall be liable to a penalty not exceeding level 1 on the standard scale or in the discretion of the court to imprisonment for any term not exceeding one month.

Keynote

This offence is committed if a person is on the highway or public place and shown to be drunk. It does not matter that the person is there only briefly or of his/her own volition.

‘Other public place’ will include all places to which the public have access (whether on payment or otherwise).

The offence has been held to apply to the licensee when found drunk on the licensed premises, even when those premises were not open to the public (Evans v Fletcher (1926) 135 LT 153).

This offence is a ‘penalty offence’ for the purposes of s. 1 of the Criminal Justice and Police Act 2001.

On arresting a person for this offence, under the powers contained in s. 24 of the Police and Criminal Evidence Act 1984, a police officer may, if he/she thinks fit, take the person to an approved treatment centre under s. 34 of the Criminal Justice Act 1972. During the journey to such a treatment centre the person will be deemed to be in lawful custody. Section 34 does not allow a person to be detained at the centre and does not preclude any charge being brought in relation to the offence.

4.16.7.10 Being Drunk While in Charge of Child

Offence Licensing Act 1902, s. 2

  • One month’s imprisonment and/or a fine summarily

The Licensing Act 1902, s. 2 states:

  1. (1) If any person is found drunk in any highway or other public place, whether a building or not, or on any licensed premises, while having the charge of a child apparently under the age of seven years, he may be apprehended . . .

  2. (2) If the child appears to the court to be under the age of seven, the child shall, for the purposes of this section, be deemed to be under that age unless the contrary is proved.

Keynote

This is used for its specific purpose, i.e. the safety of young children (R (On the Application of A) v Lowestoft Magistrates’ Court [2013] EWHC 659 (Admin)).

4.16.8 Children—Offences under the Licensing Act 2003

The Licensing Act 2003 makes provision for offences and breaches of the regulatory framework with the protection of children as one of its primary objectives. In summary, the key offences under the 2003 Act are:

Unaccompanied children prohibited from certain premises (s. 145). Allowing an unaccompanied child, aged under 16, on relevant premises at a time when they are open for the purposes of being used for the supply of alcohol for consumption on the premises.

Sale of alcohol to children (s. 146). The ‘selling’ of alcohol to a person aged under 18 anywhere (not just on licensed premises). It is a defence where the person charged believed that the individual was 18 or over, had taken all reasonable steps to establish the individual’s age, or nobody could reasonably have suspected from the individual’s appearance that they were aged under 18.

Allowing the sale of alcohol to children (s. 147). Where a person, who works at relevant premises in a paid or unpaid capacity which authorises them to prevent the sale, knowingly allows the sale of alcohol on the premises to an individual under 18.

Persistently selling alcohol to children (s. 147A). If on two or more different occasions within a period of three consecutive months alcohol is unlawfully sold on the same premises to an individual aged under 18. It is ‘unlawfully sold’ if the person making the sale believed the individual to be under 18 or did not have reasonable grounds for believing them to be 18 or over.

Purchase of alcohol by or on behalf of children (s. 149). This covers all forms of under-18s buying (or trying to buy) alcohol or someone else doing it on their behalf.

Consumption of alcohol by children (s. 150). A person aged under 18 knowingly consumes alcohol on relevant premises and by a person working at the premises who knowingly allows the consumption of alcohol. However, no offences are committed where the individual is aged 16 or 17, the alcohol is beer, wine or cider, the consumption is at a table meal and the individual is accompanied by an person aged 18 or over.

Delivering alcohol to children (s. 151). A person working on relevant premises knowingly delivering alcohol sold on the premises to a person aged under 18. For example, circumstances where a child takes delivery of a consignment of alcohol bought by a parent from an off-licence.

Sending a child to obtain alcohol (s. 152). A person knowingly sending an individual aged under 18 to obtain alcohol that is sold on relevant premises, for consumption off the premises. For example, where a parent sends their child to an off-licence to collect some alcohol which had been bought over the telephone. The offence will be committed regardless of whether the child is sent to the actual premises from where the alcohol is sold or supplied, or whether the child is sent to other premises to which the alcohol has been sent.

Prohibition of unsupervised sales by children (s. 153). A premises licence holder, designated premises supervisor or someone over 18 authorised by them, to knowingly allow an individual aged under 18 to make on the relevant premises any sale of alcohol, or in the case of a club, any supply of alcohol to members of the club. This does not apply to the sale or supply of alcohol to persons having table meals.

Keynote

All of the offences listed above are triable summarily and punishable by a fine.

In relation to allowing the sale of alcohol to children (s. 147), purchase of alcohol by or on behalf of children (s. 149) and sending a child to obtain alcohol (s. 152), an offence will not be committed where the individual buys or attempts to buy the alcohol at the request of a constable or a weights and measures inspector who is acting in the course of his/her duty.

With the exceptions of ss. 146, 147A and 149, all the other offences listed refer to the offence occurring on ‘relevant premises’. This means premises that are exclusively or primarily used for the supply of alcohol for consumption on the premises and include premises operating with a temporary event notice.

4.16.9 Children—Other Offences

In addition to the offences outlined above, other legislation creates specific offences in relation to children.

4.16.9.1 Persistently Possessing Alcohol in a Public Place

Offence Policing and Crime Act 2009, s. 30

  • Triable summarily

  • Fine

The Policing and Crime Act 2009, s. 30 states:

  1. (1) A person under the age of 18 is guilty of an offence if, without reasonable excuse, the person is in possession of alcohol in any relevant place on 3 or more occasions within a period of 12 consecutive months.

  2. (2) ‘Relevant place’, in relation to a person, means—

    1. (a) any public place, other than excluded premises, or

    2. (b) any place, other than a public place, to which the person has unlawfully gained access.

  3. (4) For the purposes of subsection (2) a place is a public place if at the material time the public or any section of the public has access to it, on payment or otherwise, as of right or by virtue of express or implied permission.

Keynote

In relation to s. 30 (2)(a), ‘excluded premises’ means premises with a premises licence or permitted temporary activity used for the supply of alcohol, and premises with a club premises certificate used for the supply of alcohol to members or guests.

The original Home Office guidance set out the steps to be taken to deter young people from drinking and possessing alcohol in public places, including engagement with their parents or guardians. It was intended that this offence be used in conjunction with s. 1 of the Confiscation of Alcohol (Young Persons) Act 1997 (see para. 4.16.9.2), to enable a constable to confiscate alcohol from those under 18 years of age, and to ensure that the young person was required to give his/her name and address to the constable.

4.16.9.2 Confiscation of Alcohol when Person under 18 may be Involved

The Confiscation of Alcohol (Young Persons) Act 1997, s. 1 states:

  1. (1) Where a constable reasonably suspects that a person in a relevant place is in possession of alcohol, and that either—

    1. (a) he is under the age of 18; or

    2. (b) he intends that any of the alcohol should be consumed by a person under the age of 18 in that or any other relevant place; or

    3. (c) a person under the age of 18 who is, or has recently been, with him has recently consumed alcohol in that or any other relevant place, the constable may require him to surrender anything in his possession which is, or which the constable reasonably believes to be, alcohol or a container for such alcohol.

  2. (1AA) A constable who imposes a requirement on a person under subsection (1) shall also require the person to state the person’s name and address.

  3. (1AB) A constable who imposes a requirement on a person under subsection (1) may, if the constable reasonably suspects that the person is under the age of 16, remove the person to the person’s place of residence or a place of safety.

Keynote

Under s. 1(6), a ‘relevant place’ is:

Subsections (1) and (2) do not apply where:

  • any public place, other than licensed premises; or

  • any place, other than a public place, to which that person has unlawfully gained access;

and for this purpose a place is a public place if, at the material time, the public or any section of the public has access to it, on payment or otherwise, as of right or by virtue of express or implied permission. Therefore the power may be exercised in any public place (as defined above) not being ‘licensed premises’. It may also be exercised in any other place that is not a public place to which the person has gained access unlawfully. This second expression suggests that the person must, as a matter of fact, have gained access to the place unlawfully as opposed to the officer simply ‘suspecting’ or ‘believing’ that to be the case. It also suggests that, if the person was originally in the place lawfully but was later asked to leave, the power would not apply as the person’s access would not have been ‘unlawfully gained’. The section does not provide the police officer with a power of entry or a power to search.

This is a discretionary power for police officers to exercise as they deem fit.

It is unusual that the wording of the section says ‘either’, then goes on to give three instances where the power will be available. However, if one of the instances at s. 1(1)(a)–(c) applies, the police officer may require the person concerned to surrender anything that is, or that the officer reasonably believes to be, alcohol or a container for such alcohol.

Subsection (1AA) states the constable shall require the person to state his/her name and address. Subsection (1AB) was part of a government initiative intended to prevent low-level crime and disorder. Although a ‘place of safety’ is not defined, this may be a relative or friend, or where necessary, a police station or social services accommodation.

There is no requirement for the officer to be in uniform.

Under s. 1(2), the officer may dispose of anything surrendered to him/her in answer to the making of such a requirement.

4.16.9.3 Failure to Surrender Items believed to be Alcohol

Offence Confiscation of Alcohol (Young Persons) Act 1997, s 1(3)

  • Triable summarily

  • Fine

The Confiscation of Alcohol (Young Persons) Act 1997, s. 1 states:

  1. (3) A person who fails without reasonable excuse to comply with a requirement imposed on him under subsection (1)or (1AA) commits an offence.

Keynote

Where a constable imposes a requirement on a person under s. 1(1) or 1(1AA) (see para. 4.16.9.2), he/she must inform that person of his/her suspicion and that to fail without reasonable excuse to comply with such a requirement is an offence (s. 1(4)).

4.16.9.4 Closure Notices for Persistently Selling Alcohol to Children

Section 169A of the Licensing Act 2003, provides that a senior police officer (of the rank of superintendent or higher), or an inspector of weights and measures, may give a closure notice where there is evidence that a person has committed the offence of persistently selling alcohol to children at the premises in question, and he/she considers that the evidence is such that there would be a realistic prospect of conviction if the offender was prosecuted for it. A closure notice can only be given within three months of the last offence (s. 169A(9)).

A closure notice will propose a prohibition on sales of alcohol at the premises in question for at least 48 hours but not more than 336 hours (s. 169A(4)), and will offer the opportunity to discharge all criminal liability in respect of the alleged offence by the acceptance of the prohibition proposed in the notice (s. 169A(2)). The premises licence holder will have 14 days to decide whether or not to accept the proposed prohibition or to elect to be tried for the offence (s. 169A(4)). Where the licence holder decides to accept the prohibition, it must take effect not less than 14 days after the date on which the notice was served at a time specified in the closure notice (s. 169A(5)).

A closure notice may be served on the premises to which it applies only by being handed by a constable or trading standards officer to a person on the premises who appears to the constable or trading standards officer to have control of or responsibility for the premises (s. 169A(7)). The closure notice can only be served at a time when licensable activities are being carried on at the premises.

4.16.10 Public Spaces Protection Order: Alcohol Prohibition

The power to make a Public Spaces Protection Order is contained in s. 59 of the Anti-social Behaviour, Crime and Policing Act 2014. It provides for an order to be made prohibiting the consumption of alcohol in designated public places, as well as dealing with any other particular nuisance or problem in a particular area.

4.16.10.1 Power to Make Orders

The Anti-social Behaviour, Crime and Policing Act 2014, s. 59 states:

  1. (1) A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.

  2. (2) The first condition is that—

    1. (a) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or

    2. (b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.

  3. (3) The second condition is that the effect, or likely effect, of the activities—

    1. (a) is, or is likely to be, of a persistent or continuing nature,

    2. (b) is, or is likely to be, such as to make the activities unreasonable, and

    3. (c) justifies the restrictions imposed by the notice.

  4. (4) A public spaces protection order is an order that identifies the public place referred to in subsection (2) (‘the restricted area’) and—

    1. (a) prohibits specified things being done in the restricted area,

    2. (b) requires specified things to be done by persons carrying on specified activities in that area, or

    3. (c) does both of those things.

Keynote

The breach of an order prohibiting the consumption of alcohol is an offence when an individual does not cease drinking or surrender alcoholic drinks when challenged by an enforcement officer, which includes a constable, PCSO or local authority officer (s. 63(6)).

Persons breaching an order may be subject to a fixed penalty notice or prosecution (s. 68). A constable or an authorised person may dispose of anything surrendered in whatever way he/she thinks appropriate (s. 63(5)).

4.16.11 Orders to Close Premises in Area Experiencing Disorder

The Licensing Act 2003, s.160 states:

  1. (1) Where there is or is expected to be disorder in any local justice area, a magistrates’ court acting in the area may make an order requiring all premises—

    1. (a) which are situated at or near the place of the disorder or expected disorder, and

    2. (b) in respect of which a premises licence or a temporary event notice has effect, to be closed for a period, not exceeding 24 hours, specified in the order.

  2. (2) A magistrates’ court may make an order under this section only on the application of a police officer who is of the rank of superintendent or above.

  3. (3) A magistrates’ court may not make such an order unless it is satisfied that it is necessary to prevent disorder.

Keynote

This provision can be used where disorder is taking place in an area or where it is expected to take place.

A constable may use such force as may be necessary for the purpose of closing premises ordered to be closed under this section (s. 160(7)).

Note that a number of provisions relating to the closure of premises under the Licensing Act 2003 were repealed by the Anti-social Behaviour, Crime and Policing Act 2014. New powers contained in the 2014 Act consolidate various previous closure powers relating to licensed and non-licensed premises which are causing, or are likely to cause, anti-social behaviour. These powers can be found in chapter 4.7.

Offence Licensing Act 2003, s. 160

  • Triable summarily

  • Fine

The Licensing Act 2003, s. 160 states:

  1. (4) Where an order is made under this section, a person to whom subsection (5) applies commits an offence if he knowingly keeps any premises to which the order relates open, or allows any such premises to be kept open, during the period of the order.

  2. (5) This subsection applies—

    1. (a) to any manager of the premises,

    2. (b) in the case of licensed premises, to—

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

      2. (ii) the designated premises supervisor (if any) under such a licence, and

    3. (c) in the case of premises in respect of which a temporary event notice has effect, to the premises user in relation to that notice.

Keynote

Proof that the person acted knowingly is an essential element of this offence. Proof that the order was properly made and in force so far as that date and location were concerned will also be an essential part of any prosecution.

4.16.12 Closure Notices for Unlicensed Premises

The Criminal Justice and Police Act 2001, s. 19 states:

  1. (1) Where a constable is satisfied that any premises are being, or within the last 24 hours have been, used for the unauthorised sale of alcohol for consumption on, or in the vicinity of, the premises, he may serve under subsection (3) a notice in respect of the premises.

  2. (2) Where a local authority is satisfied that any premises in the area of the authority are being, or within the last 24 hours have been, used for the unauthorised sale of alcohol for consumption on, or in the vicinity of, the premises, the authority may serve under subsection (3) a notice in respect of the premises.

  3. (3) A notice under subsection (1) or (2) (‘a closure notice’) shall be served by the constable or local authority concerned on a person having control of, or responsibility for, the activities carried on at the premises.

  4. (4) A closure notice shall also be served by the constable or local authority concerned on any person occupying another part of any building or other structure of which the premises form part if the constable or (as the case may be) the local authority concerned reasonably believes, at the time of serving notice under subsection (3), that the person’s access to the other part of the building or other structure would be impeded if an order under section 21 providing for the closure of the premises were made.

  5. (5) A closure notice may also be served by a constable or the local authority concerned on—

    1. (a) any other person having control of, or responsibility for, the activities carried on at the premises;

    2. (b) any person who has an interest in the premises.

Keynote

The power provided by this section is available to any police officer irrespective of rank.

The closure notice must specify the alleged use of the premises, the grounds on which it has been issued, the steps that are required to be taken to ensure that the alleged use of the premises ceases or does not recur, and state the effects of s. 20 (s. 19(6)).

Where a closure notice has been served under s. 19(3), a constable or the local authority concerned may make a complaint to a justice of the peace for a closure order (s. 20(1)). The complaint must be made not less than seven days, and not more than six months, after the service of the closure notice (s. 20(2)). However, a complaint cannot be made under this subsection if the constable or the local authority is satisfied that the use of the premises for the unauthorised sale of alcohol for consumption on, or in the vicinity of, the premises has ceased, and there is no reasonable likelihood that the premises will be so used in the future (s. 20(3)).

Where a closure order is made by the court a constable or authorised person may enter the premises, if necessary using reasonable force, at any reasonable time to do anything necessary to secure compliance with the order (s. 25(1)). The constable or authorised person must produce identification if so required by the owner, occupier or person in charge of the premises (s. 25(2)). Intentionally obstructing a constable or authorised person is a summary offence (s. 25(3)). Permitting premises to be open in contravention of the order is an offence (s. 25(4), as is failing to comply with a closure order generally (s. 25(5)).

4.16.13 Keeping of Smuggled Goods

Offence Licensing Act 2003, s. 144

  • Triable summarily

  • Fine

The Licensing Act 2003, s. 144 states:

  1. (1) A person to whom subsection (2) applies commits an offence if he knowingly keeps or allows to be kept, on any relevant premises, any goods which have been imported without payment of duty or which have otherwise been unlawfully imported.

  2. (2) This subsection applies—

    1. (a) to any person who works at the premises in a capacity, whether paid or unpaid, which gives him authority to prevent the keeping of the goods on the premises,

    2. (b) in the case of licensed premises, to—

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

      2. (ii) the designated premises supervisor (if any) under such a licence,

    3. (c) in the case of premises in respect of which a club premises certificate has effect, to any member or officer of the club which holds the certificate who is present on the premises at any time when the goods are kept on the premises in a capacity which enables him to prevent them being so kept, and

    4. (d) in the case of premises which may be used for a permitted temporary activity by virtue of Part 5, to the premises user in relation to the temporary event notice in question.

Keynote

This offence was primarily created in an attempt to control the influx of tobacco and alcohol products on which the relevant duty had not been paid, but it is far wider than that.

The requirement that the defendant acted knowingly is an essential element of this offence.

The court by which a person is convicted of this offence may order the goods in question (and any container for them) to be forfeited and either destroyed or dealt with in such other manner as the court may order (s. 144(4)).