Pitfalls in new police powers of closure

There has already been some confusion over the effects of the new police powers of closure in the Violent Crime Reduction Act 2005. Much is debatable about this new sanction, so contrary to my usual custom, here is the relatively good news first:

  • it is not instant closure;

  • it is not retrospective.

    In other words, you will have an opportunity to protest before you are forced to shut up shop for a couple of days, and no offences or cautions which took place before April 6 this year can be counted towards your tally.

    That may not be much consolation over a measure that some have described as draconian and others as knee-jerk politics, but it does put the changes into perspective. Unfortunately, that is about as good as it gets.

    What the new act does is to add four new sections to the Licensing Act, giving

    police and Trading Standards a double-edged sword in relation to "persistent

    selling" to minors. They can decide either to prosecute for this new offence, or can issue a closure notice instead. They cannot do both.

    The offence consists of three occasions during a three-month period in which alcohol was sold to minors in one licensed premises.

    The sales or alleged sales do not have to be made by the same person, or to

    the same person - the count is against the premises. After the third incident, it is the premises licence holder and no one else who will be issued with the summons or the closure notice.

    There do not have to be three prosecutions in order to trigger this action.

    The new section states that it can be:

  • a conviction under section 146 (selling to someone under 18);

  • a caution under the Police Act 1997;

  • a fixed penalty under the 2001 Criminal Justice & Police Act;

  • or any combination of these.

    It is also possible that the mere failure of a test purchase, without any action taken at the time, will be produced as "evidence" of the third failure, in addition to any of the above. The section does not say these are the only circumstances that go to prove the offence.

    The problem is that the actual holder of the premises licence (as opposed to the Designated Premises Supervisor) may not be aware of these. He will know about a prosecution, presumably, but cautions and fixed penalties may not find their way back to head office or to the owner.

    The actual notice has to be handed over to a person in charge of the shop in question. But there is the most extraordinary exemption: the police are obliged to post a notice to the address given for premises licence holder; but if they fail to do this, it makes no difference - the closure goes ahead. You can protest you did not know, but it will be of no avail.

    The problem is that, as the licence holder, you may indeed have put in place very stringent rules and checks on under-age sales. You may have used "due

    diligence" - enough to allow you in normal circumstances to use as a defence if you were to be charged with an actual offence of a sale to a minor.

    But this will not avail you under the new offence provisions. Due diligence is not a defence: it is the mere fact of the "three strikes" that trigger the police or Trading Standards action.

    Obviously, if the police decide to go for prosecution, due diligence can be pleaded in mitigation. But if they opt for the closure notice, then there is a dilemma. The recipient of the notice is given at least 14 days to decide whether or not to accept it; so as I have commented, it is not an instant closure.

    If he does accept, then the shop must not sell alcohol for the period stipulated in it (which can be up to 48 hours - the period is chosen by the issuer). If he contests it, then the matter goes to the magistrates, who after hearing evidence can fine the offending premises licence holder up to £10,000 and in addition impose an alcohol sales ban of up to three months.

    The "carrot", therefore, is that the acceptance of the closure notice will mean no fine and no longer suspension, because it discharges the overall offence entirely. No prosecutions can follow.

    The other point about opting for a court appearance (although this is not entirely clear) is that if you are found guilty as a personal licence holder, your own personal licence can be forfeited or suspended for up to six months

    because persistent selling is a "relevant offence" under the Licensing Act.

    Not really much good news.

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