Who: The Home Office
Where: England and Wales
When: September 2014
Law stated as at: 7 October 2014
What happened:
In September 2014, the Home Office published Guidance on Mandatory Licensing Conditions (the “Guidance”) for suppliers of alcohol to accompany the changes being made to these conditions by the Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014 (the “Order”).
The Order came into force on 1 October 2014. It made changes to the six mandatory conditions introduced in 2010, which apply to all premises in England and Wales that are authorised to supply alcohol under a premises licence or club premises certificate.
One of the six conditions is a ban on irresponsible alcohol promotions. Irresponsible alcohol promotions are any activity or offer that encourage customers to drink in a way that could significantly risk breaching the four licensing objectives. These are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm.
“Reasonable measures” changed to “must ensure”
According to the Guidance, the changes being made by the Order will “tighten the existing mandatory licensing conditions”.
In relation to the condition banning irresponsible promotions, this tightening can be seen in the change of wording from the responsible person “shall take all reasonable measures” to “must ensure” that they or their staff do not engage in or arrange irresponsible promotions. This requires a stricter compliance with the ban.
Amongst the stricter obligations on licensees are a requirement to ensure that they do not sell alcohol alongside any promotional material, such as posters on the premises or in the vicinity of the premises, which could be considered to encourage or glamourize antisocial behaviour or display drunkenness favourably. All posters or flyers promoting or publicising an event are included within this condition.
The ban on large quantities of alcohol being given away for free or at a fixed or discounted price under this condition now applies to promotions available to customers who are having a table meal, which was previously excluded from the ban.
Further, the Guidance clarifies that the previously standalone condition, that alcohol should not be dispensed directly into a customer’s mouth by a member of staff, now comes within the condition banning irresponsible promotions.
Increase in customers as a significant risk to licensing objectives
The Guidance states that the provision of free or discounted alcohol or any other offer such as a prize, to encourage or reward the consumption of alcohol, is banned if this creates a significant risk of undermining a licensing objective.
The Guidance sets out the factors that are taken into account in the assessment of whether a promotion causes such a “significant risk”. The factors include how long a discount applies for, how big the discount is and whether the establishment has a history of handling promotions responsibly. Crucially, one of the factors, according to the Guidance, is whether the promotion is likely to significantly increase the number of customers. This factor seems to be the very purpose of a promotion, and would appear to potentially transform all successful promotions into an irresponsible promotion.
Why this matters:
Failure to comply with the mandatory conditions attached to a licence or club premises certificate is a criminal offence, which on conviction would be punishable by a fine of up to £20,000 or up to six months imprisonment or both.
Therefore, it is important when contemplating a promotion that involves the sale of alcohol from licensed premises, to take into account the conditions imposed in 2010 and their stricter application since the Order came into force this month. In particular, the fact that the Guidance sets out an increase in customers as a factor to be taken into account when assessing whether a promotion of alcohol causes a significant risk should make licensed sellers of alcohol take caution.
