I can understand why some operators are exceedingly nervous over the question of proof of age cards.
However, I am very sorry to note that the PASS scheme is being rejected in some places because of the possibility of fake cards. Certain groups will only accept a passport or photo driving licence as proof of identity and age, which is tough on those who stay in the UK or do not drive!
The nervousness stems from the Government's insistence on reducing the rules on test purchase failures from three strikes to two. Comments on this were made in the House of Lords when the Policing and Crime Bill went to committee. No satisfactory explanation was given for the change, except that it would concentrate on the deterrent effect. As there have been very few prosecutions, it does not seem to be much of an effect at all, but that will not stop the Home Office from pursuing its vendetta.
It seems that some people in the licensed trade need to ensure that they never have an underage problem. One nightclub manager told me that it was not the prosecution so much as the police crackdown and the possible risk to the licence that worried him. A closure costs an operator thousands of pounds — far more than any fine for the offence.
But the situation is slightly more complex, in that there is a defence of due diligence available to anyone charged with selling to a minor. The first element of this defence is that the seller "had taken all reasonable steps to establish the individual's age". This involves asking for proof of age, and that the proof produced "would have convinced a reasonable person."
So it is not a requirement to have absolute proof, merely something which normal people would accept as being adequate evidence, such as a photographic proof of age card. If it subsequently turns out to be an excellent fake, that does not remove the defence if anyone would have been taken in by it.
But current circumstances clearly do not allow some operators to run that risk, especially if they think that some of their own staff are less than diligent on these matters. The turn-over of workers means that induction on underage sales is an absolute must, and if this means insisting on certain documents, then that is the route they will take. Unfortunate, but true.
Q&A
Thug ban survives
Q. Now that Drinking Banning Orders have been brought in, does this finally mean the Ban the Thug Act has been repealed, as you said in an article recently, and we cannot use it.
A. I am pleased to say this is not the case. The Commencement Order that brought in the Drinking Banning Order carefully skirted round this issue, by postponing both the power of the courts to issue the new orders on conviction and preserving for the time being the Licensing Premises (Exclusion of Certain Persons) Act 1980, which can still be used by magistrates and judges.
This means that if you have a procedure in place for notifying the police or the Crown Prosecution Service at the time of prosecution of an offender, then that will still be available to you, and your colleagues can ask to be joined in it with the pub where the offence took place.
The Home Office wants to study the effects of these banning orders before moving to the second stage and passing responsibility to the courts as well. Although the Thug Act appears doomed, it may be that the brief reprieve will provide an opportunity to show an incoming Government that it still works well and should be retained.
Drinking on the move
Q. I seem to have forgotten a number of things about the new law since I first looked at it. Can you remind me which types of transport are allowed alcohol on them? I seem to remember that under the old licensing laws, certain moveable objects such as boats and trains gained an exemption from licensing, and from permitted hours. What is the situation under the new Licensing Act?
A. The situation with regard to trains and planes remains more or less the same — in general, the sale of alcohol on these is not a licensable activity and therefore exempt from the provisions the Licensing Act. However, a new provision has been included, so that a magistrates' court may prohibit or restrict the sale of alcohol on certain trains in certain circumstances, eg, football supporters' excursions, on application by the police.
The law on international boat voyages remains the same, but the law for inland boats has changed. Under the previous law, a pleasure boat or ferry plying between places in England and Wales did not require a licence and was not subject to permitted hours. Now, such vessels require to be licensed as if they were premises, with the licensing authority being that of their "home port". If they sell alcohol, they will need a designated premises supervisor and an operating schedule appropriate to the activities they undertake, which can of course include entertainment as well as the supply of drinks.
Asking for credit
Q. The old licensee of this pub always had a rule about no credit, and I understand that this is now my responsibility as the designated premises supervisor. But how does this fit in with putting a card behind the bar for the whole session? Is this allowed?
A. As I have previously commented, there is no mention of credit in the new Licensing Act, and in the absence of any express condition on your licence, credit sales would be allowed anyway, although some experts do not believe that a "credit card" is anything other than an alternative method of payment.
In terms of a restriction on the licence, I do not think the credit rule was carried over on transition. In the old Act, the requirement was for a drink to be paid for "before or at the time when it is sold or supplied." This might be taken to mean exactly at the moment of delivery, or during the evening or lunchtime in question, so the use of the card may well have been legal even then.