Double the punishment

I am back to the subject of test purchasing this week, because I am still receiving examples from readers of actions that they think are unfair. But few people even in the trade understand the double-edged sword of the new legislation, which can result in two penalties instead of one, no matter how careful you are.

Let us be entirely clear about one thing: the north Wales closure notices for 11 licensees were served on the premises licence holder directly, whether he personally did anything wrong or not. I must assume that they were based on the "old" rule of three strikes — meaning that in the past three months there were three examples of underage sales on each of these premises. Either that, or soon after the three were reduced to two strikes (on 29 January) by virtue of the Policing and Crime Act, the north Wales police had a blitz and caught a lot of people out.

The licence holder may not even know of these offences, particularly if he was away from the premises at the time or does not personally supervise the affairs of the pub. The problem is that all the police have to show, in order to start the "punishment" process, is that there have been examples of underage selling for which there would be "a realistic prospect of conviction".

If they have this evidence and are sure of their ground, they can either prosecute the licence holder or offer him the alternative of a closure notice; this means that he must stop serving alcohol in the premises for a period of 48 hours, which is set by the issuing officer, not by the licensee (he cannot choose this period). The north Wales police originally chose the Easter weekend — which was good of them — but then changed their minds, presumably after receiving advice that it would not look good if a couple of tourist towns appeared "closed" for the first holiday of the year!

The licensees in question did have a choice: they could either accept the closure or go to court and be tried in the normal way. If they did that they faced a fine of up to £10,000 (for the section 147A offence) and they do not specifically have the defence of "due diligence". In other words, even if they were the best possible trainer and had large notices up all over the place, they would still stand to be convicted on the facts.

On top of that, the closure is not the end. They are still to be hauled in for a review of the licence, which could result in yet another period of suspension, the imposition of conditions, a change of designated premises supervisor or even the revocation of their licence.

Acceptance of the 48-hour closure does not really get you off the hook. But most licensees would probably accept that as the lesser of two evils, because the magistrates can actually suspend the licence for up to three months on conviction for the section 147A offence, as well as impose a hefty fine.

Two strikes​

This is why the reduction to two strikes is so lethal: you, as licensee, can be as careful as possible and give clear instructions to staff. But if one or two of them make a mistake, or are persuaded in a weak moment to sell, it will be costly. The problem is: if they think you are going to fire them, they may conceal the first offence for which they have received a penalty notice. The next time is the killer and you could lose your licence on the back of it.