Can drunkenness be judged?

It remains an offence under section 141 of the Licensing Act 2003 to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person on relevant premises.

A similar offence existed in the previous licensing regime together with the further offence of permitting drunkenness in licensed premises, which no longer exists. Although that offence may have disappeared, the relatively user-friendly facility of review of a premises licence means that general levels of drunkenness can still cause problems for operators and lead to their licence coming under threat.

A couple of recent cases have brought the issue of drunkenness to the forefront once again.

A bar owner in France was accused of killing a customer by allowing him to consume 56 shots of spirits during a drinking contest.

The 57-year-old customer died having tried to eclipse the previous record of 55 shots in one evening at the venue in question.

The customer was carried home by family and friends following the contest but later died of a heart attack and the evidence suggested that, towards the end of the contest, the bar owner had encouraged him by saying “only 12 to go”.

The bar owner was prosecuted for manslaughter but, interestingly, there is also a new law set to come into force in France, which will make it illegal to encourage minors to “drink until they become drunk”.

There has also been recent publicity surrounding the revocation of a premises licence in Birmingham where a customer allegedly drank half a litre of whiskey in approximately 20 seconds.

The customer in this case allegedly reached over the bar and helped himself to a bottle of Jack Daniel’s whiskey and proceeded to consume the quantity alleged.

The suggestion is that the designated premises supervisor subsequently went out to a restaurant with a friend, leaving the customer in question within the premises.

It was only when he returned that he discovered the customer had died. At that point he seems to have alerted the emergency services.

Both of these recently publicised cases are extreme situations and it is difficult to imagine that any responsible operator would consider that the actions of those involved in the running of those premises were in any way acceptable.

What is much more difficult on a day-to-day basis is to determine what level of drunkenness is acceptable and what is not. On one hand, you have the fairly irrefutable logic
that dictates that the consumption of alcohol provides a significant contributing factor to levels of crime and disorder and public nuisance, thus falling foul of two of the licensing objectives.

On the other hand, if we accept that people will drink to ‘excess’ (wherever that particular line may be drawn) then it is surely better it takes place in a properly regulated environment with staff in attendance who are properly trained to deal with the issues which arise and with the police and other emergency services in attendance in the background to deal with the most serious consequences.

Case law during the years provides little real assistance in determining a useful definition of ‘drunkenness’ with suggestions such as that one is drunk when one’s faculties are impaired beyond what they would usually be. That, to my mind means that just about every individual in every licensed premises around the country is ‘drunk’.

The reality is that there have been very few prosecutions for the offence under s141 with Ministry of Justice figures suggesting that there were 10 such prosecutions in 2013 and 18 in 2012.

Evidence of drunkenness does, however, form part and parcel of review applications brought these days with the observations of police officers in attendance at licensed premises providing the most likely source. Such evidence will inevitably contain terms such as “eyes glazed”, “slurred speech” and “unsteady on their feet”.

Nowhere is there to be found clear guidance to operators on how to accurately assess levels of drunkenness such that the licence is protected.

Various police forces are starting to encourage the use of breathalysers but most of the industry and its trade bodies appear to be op-posed to this.

I have, however, recently come across a suggestion from a nightclub owner that the use of such breath-alysers provides an excellent excuse to refuse entry to premises on a variety of grounds in a diffusing rather than aggravating manner.

This is an issue that is unlikely to go away, but the subjective nature of an assessment of drunkenness makes this a very difficult area to police both from the point of view
of the operator trying to protect their licence and the regulator endeavouring to promote the licensing objectives.