Test purchasing: playing it by the book

Last week I mentioned the LACORS code of practice on test purchasing. Thanks to a colleague, I now have a copy of the latest edition, published this month, which confirms exactly what I wrote last week, says Peter Coulson.

The police are not playing it by the book.

The code of practice now states that in exceptional circumstances it will be alright for a person to lie about their age if they are undertaking test purchasing. This is a significant shift and brings the possibility of entrapment a step closer.

There are other changes to the code, including a risk assessment to be carried out if young persons are used in test purchases on licensed premises, which covers such matters as the risk of the licensee becoming abusive or angry when he discovers the age of the intended purchaser.

But more important is the clearly-expressed advice that the exercise must avoid any suggestion of entrapment. This means "the avoidance of inciting, instigating, persuading, pressurising or wheedling a person into committing an offence that, otherwise, would not have been committed."

While an officer may need to be present in the vicinity of the transaction, to supervise it, the code indicates they should not directly take part in it, in a way that might confuse the seller as to the actual identity of the purchaser, as has been recently alleged.

The main thrust of the revised code, however, is the protection of the young person and ensuring that they are not exposed to any risk, including that of their true identity being revealed.

But it is clear that the code anticipates that there will be a direct relationship between the test purchaser and the seller, not an oblique one where an adult is directly involved with some aspect of the purchase that might lead the person serving to assume that they, and not the juvenile, is the one actually making the purchase.

The code makes the important point that there should be no attempt to persuade or coerce the seller into making the sale if there has been an initial refusal and that the object is not to entrap individuals by any means, but to obtain evidence of a blatant breach of the law when a clearly underage person attempts directly to make a purchase of alcohol.

It is hoped that the new code will make its way into the offices of some police forces who take a different line these days.

Q&A​

Who would prosecute?​

Q.​ With regard to confiscation of fake ID by doorstaff, who would prosecute if they hand fake cards over to the police?

A.​ This is, of course, the burning question. It is something of a hollow warning if in reality no-one took the responsibility for initiating proceedings against the young persons in question.

My impression is that the police would not be keen to start proceedings under the Fraud Act because of the technical and evidential problems involved. It is not really their normal area of expertise, so to speak. They could not prosecute for attempting to buy alcohol either, because the attempt would not have been made if the confiscation occurred on the door, rather than at the bar at the time that an alcoholic drink was requested. In any event, that is not as a result of fake ID, but as a result of the actual licensing laws, which is a different issue.

The local authority would have no direct knowledge of the matter unless it was involved in the issuing of the relevant cards. Agencies who produce the cards could conceivably take action in respect of the fraudulent use of their material, but this would seem highly unlikely and for them rather un-productive. So in short, the answer is: probably no-one. We shall have to rely on the deterrent effect of posters, rather than real-life instances.

Poker — whose responsibility?​

Q.​ I have read about a caution for illegal poker in a pub. What is my position when there is a private poker game taking place among customers rather than anything organised by the pub? Also, what if they settle up outside afterwards?

A.​ These are important questions because the proper control of gambling on licensed premises has been highlighted recently. While there is a distinction between gambling organised by the pub and that taking place simply among customers, both of them need full attention from the premises licence holder.

We have had queries over many years in the Morning Advertiser regarding "card schools". The pub is a good place to meet, and games are likely to occur. The problem only arises where any form of betting or gambling takes place. In this respect, the obligations are the same for the licensee. You must not permit premises to be used to provide facilities for gaming, whoever actually organises the gambling in question. There is an exemption for "private gaming", but this only applies on a domestic occasion or on premises to which the public does not have access, which would exclude pubs.

In answer to your second question, the issue would be one of fact — did you know that this was in fact gaming or was just for fun, using chips or matchsticks instead of money? If you did not know, it is unlikely you could be charged with "permitting" it. Where you are advised that this is in reality gaming, that knowledge should cause you to warn the offenders not to treat the pub as a casino!

Cards for guests​

Q.​ I have been told that all club guests must be supplied with cards or dockets on the door to signify that they are legally entitled to be on the premises and purchase drinks. Is this a legal requirement?

A.​ The legal requirement under a club premises certificate, which is what I assume you have, is that alcohol is only supplied to members and guests. The term "guest" may also include associate members of other clubs and guests of the whole club for some reason.

There is no stated requirement that such persons should carry some form of identity card to the bar, unless the club rules themselves provide for this to assist in identification. It is usual for clubs such as this to have a form of door-check and very common for there to be a visitors' book to be signed by the introducing member, giving the names of the guests. But separate cards are not required.