Defining the crime of proxy buying
There has been considerable controversy in recent months over the responsibilities of off-licensees in relation to what is called “proxy purchasing”.
This is where an adult buys alcohol on behalf of someone below the legal age of purchase. It was not specifically included in the previous Licensing Act but has been an offence under Scottish law for some time. As a deterrent, prohibition was included as section 149 of the Licensing Act 2003, with a fine set at level 5 on the standard scale, which is extremely high for this type of offence.
However, nothing in the section applies to the seller. This is because the whole object of proxy purchasing is to make what appears to be a perfectly legal purchase in the licensed premises, but subsequently handing over the goods to a minor, who pays for them. That is the correct meaning of the phrase “on behalf of” which is used in the section. If the offence had merely been one of buying for eventual consumption by a young person, the section would have used “for”.
This is not just semantic nit-picking. At the time of the bill, it was made clear that in certain circumstances the retailer could not possibly know that the adult purchaser was buying on behalf of a young person who was out of sight. Short of asking each and every purchaser whether he or she was buying on behalf of a child, the licensee or checkout staff have none of the relevant knowledge necessary for the commission of an offence. So no offence has been included.
This means that even if a proxy purchase is subsequently shown to have occurred, because the police or someone else witnesses the transaction outside the store, the licensee cannot be charged with an offence. There may be no evidence that he or she knew or had reason to know at the time the purchase was made that the goods were intended for someone else.
First of all, consumption of alcohol by a young person under 18 is not illegal. The minimum age for consumption in the UK is five years old. To give a child below that age any alcohol is an offence under the Children & Young Persons Act. So the fact a parent buys alcohol for subsequent consumption at the family home by someone between five and 18 creates no offence at all.
Even if the young person asks a parent or some other adult to buy a specific type of alcohol for them, and the adult uses their own money, this is NOT proxy purchasing. It may well be buying for consumption by the child, but as long as the consumption takes place elsewhere than on licensed premises or other places where such consumption is banned, there will again be no offence.
Technically, therefore, even if the cashier or seller has some knowledge that the alcohol is eventually intended for the young person, that does not render the seller legally liable for making the sale to the adult. It does not, therefore, seem logical to refuse alcohol service in any type of store to someone who is at the time accompanied by a minor on a shopping trip.
But if one is less specific and merely assumes that the word means “handing over”, then we have a prohibition on anyone working in licensed premises “knowingly handing over” alcohol to someone under 18 or, perhaps more pertinently, “knowingly allowing anyone else to hand over to a person under 18” such purchased alcohol.
The person specified for the second offence is someone working “in a capacity … which authorises him to prevent the delivery of the alcohol”. In other words, it applies to those who work for the licensed premises directly.
It is a step too far, in my view, to infer that this “authority” can be used to prevent subsequent actions by the purchaser in respect of legally made sales.
But such is the climate of fear surrounding potential prosecutions or review of the licence that some retailers are being ultra-cautious. This is understandable, but it would be wrong to rewrite the law in this area quite so much.