The Licensing Act 2003: Children and Test Purchasing

05 June, 2007

Test purchasing has now been put on a sound legal footing, with the law actively encouraging local authorities to engage in campaigns involving the use of young people under regulated conditions to attempt purchases in off-licences and other premises.


Your legal responsibilities include three which may be directly connected with children. These are:

1. not selling to persons under 18 years of age

2. not allowing unauthorised sales to be made by persons under 18

3. not permitting disorder on or near the premises (which may include alcohol -consumption by those under age).

Sale of alcohol

There remains a general prohibition on the sale of alcohol to those under 18 – not just on licensed premises, but anywhere. Again, the offence can be committed by any member of staff, not just the holder of the premises licence or the designated premises supervisor (DPS). If, however, the holder of a personal licence or the DPS is charged with an offence because a member of staff actually made the sale, he or she can escape conviction if it is shown that they used “due diligence” to avoid the sale (eg. clear instructions to staff and regular challenges, etc).

Similarly, it is a defence, as previously, to assert that the person did not look under 18 or provided proof of age which “would have convinced a reasonable person.”

There is also the offence of “allowing” a person to sell to someone under 18, which would normally go against the designated premises supervisor or personal licence holder in charge of the premises, but could involve someone such as an area manager or director who did not hold a licence at all. Clearly, due diligence would be the main defence in such cases.

So important is this issue of sales to young people in the off-trade that it should be made one of the featured elements of the induction of new staff, even those who are working for an extremely short period. Also, it is a mistake to leave such instruction until a “convenient” time – remember that a recent case involved a barman who had been employed for just 30 minutes! No person should be allowed to sell alcohol on licensed premises unless they have previously been given instruction about under-age sales, proof of identity, refusal to serve and the use of the incident book to record any event involving doubt about age.

The key elements of a sound policy on age-related sales are:

1. Clear and unambiguous instruction not to serve when in doubt

2. A written confirmation by the employee that they have understood the law

3. Description of acceptable proof of age cards and other specified documents

4. Instruction as to possible forgeries and tampered cards

5. The regular recording of incidents and refusals in the incident book

6. A warning of dismissal for gross misconduct should the procedures not be properly followed (sales to under-18s could result in the loss of the licence).

Operators of off-licensed premises would do well to include a record-keeping obligation on managers so that it is clear when the instruction process took place and that it was before any sale had been made by the new employee. Such data will clearly be of value in proving due diligence in the event of prosecution as a principal.

Consumption of alcohol

Although it is currently an offence for persons under 18 to consume alcohol on or near off-licensed premises, there may be off-licences which seek a variation to allow for certain types of on-consumption. In such cases, knowledge of the prohibition of consumption by young persons under the new law is essential.

While previously consumption by under-18s is only prohibited in a bar, the rule has been extended to the WHOLE of the licensed premises under the new law. Consumption of alcohol, even if legally purchased by an adult, is prohibited for young people throughout the premises to which the licence relates. It is also be illegal for an adult to purchase any alcohol for consumption by someone under 18. The only exception to this strict rule is the purchase of beer, cider or wine for consumption at a meal by someone of 16 or 17. But, unlike the old law, they may not buy such alcohol themselves.

It follows that any member of staff can be guilty of an offence if they knowingly allow consumption of alcohol by persons under 18. Clearly, they have to have the knowledge or the power to prevent it – unexpected or secret consumption by young people would not render the staff liable. But lax premises management and lack of supervision could result in a prosecution.

Employment of young people

It has been possible for many years to employ persons under the age of 18 in retail locations which sell alcohol. However, there remains a strict procedure to be followed and any lapse in this area could be severely punished if it takes place in the circumstances described below (test purchasing).

It is not illegal for a sale of alcohol to be directly made by someone under 18 working in the licensed premises. But such sales by persons under that age are not allowed unless each sale is specifically authorised by someone over 18. This does not mean that an adult has to be merely present in the premises – they must be made aware of the sale at the time and must consent to it being made.

So it is not possible to leave a young person in charge of the shop, even for a few minutes, unless they are instructed not to sell alcohol during that period. Nor can one give a verbal permission before leaving the shop, in the hope that it will comply with the law during absence.

A police officer or local council licensing officer purchasing or witnessing the purchase of alcohol during that period would be entitled to prosecute the holder of the premises licence or the DPS for an offence under the 2003 Act. The defence of due diligence would be difficult in such circumstances. Similarly, the test purchase by a juvenile in a similar situation could result in double jeopardy for the licence holder, for there might be two offences.

Delivery to young people

It continues to be illegal to deliver alcohol sold in licensed premises to persons under 18, but it is legal where the delivery is made to the working place or home of the (adult) purchaser and is accepted by a juvenile from the delivery person. Care must however be taken with remote sales of alcohol (eg by phone, fax, e-mail or web) where the age of the purchaser is not known by the person making the sale.

Test purchasing

Test purchasing means sending selected young persons under the age of 18, who do not look of full age, into targeted licensed premises for the purpose of detecting the commission of an offence. The new law continues to exempt both the young person and the instructing official from prosecution (because what they are both doing is otherwise illegal), but it actively encourages local authority Trading Standards departments to undertake such exercises by making it their “duty” to do so.

The purchasing must be carried out in accordance with agreed procedures laid down by local government regulators, including the selection of the purchasers, the consent of their parents, the instructions they are given and the way they are dressed. In particular, the youngsters chosen should be clearly under age so that there can be no dispute that the retailer or seller should have known their age or challenged them at some stage.

Remember it is an offence “to attempt to buy” alcohol by someone under age, so placing alcoholic goods in a basket or trolley already constitutes an offence under the licensing laws, and a young potential purchaser can be challenged as a result.

If you are made aware of a test purchase at the time, you should immediately consult your solicitor or head office so that the matter can be properly handled. A number of test purchases have foundered on the question of procedure or evidence, and early warning of a possible prosecution is of great assistance to those who may have to deal with the legal implications.

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