Challenging Challenge 25

I have been concerned for some time now about the systemic mixed messages on alcohol sales to under 18s in our licensing laws. For a considerable number of years, “18” has been the magic age at which alcohol can be purchased legally. It is common public knowledge and hardly an arcane licensing edict.

But the Licensing (Scotland) Act 2005 gives out mixed messages on this both in terms of statutory notices; the prescribed legal defences open to those charged with selling to under-agers; and how this sits with the more recent addition of the mandatory “Challenge 25” requirement under the Alcohol etc (Scotland) Act 2005.

Is a notice worth noticing?

Let me start with examining the statutory notice which is required to be displayed on every licensed premises in Scotland, under s.110 of the 2005 Act. It is imaginatively known as the “section 110 notice”. This notice requires the following wording to be displayed:

It is an offence for a person under the age of 18 to buy or attempt to buy alcohol on these premises. It is also an offence for any other person to buy or attempt to buy alcohol on these premises for a person under the age of 18. Where there is doubt as to whether a person attempting to buy alcohol on these premises is aged 18 or over, alcohol will not be sold to the person except on production of evidence showing the person to be 18 or over”.

So far so good? Well, unfortunately not. The notice is in fact wrong. It ignores the exception to the offence of someone buying certain types of alcohol for a 16 or 17 year old where the alcohol is to be consumed along with a meal. That is perfectly legal.

The Reasonableness Defence

Now consider the legal defence open to someone charged with selling alcohol to someone under 18:

It is a defence for a person charged with [selling alcohol to a child or young person] to show that (a)the accused believed the child or young person to be aged 18 or over, and (b) either (i)the accused had taken reasonable steps to establish the child’s or young person’s age, or (ii)no reasonable person could have suspected from the child’s or young person’s appearance that the child or young person was aged under 18. (3)For the purposes of subsection (2)(b)(i), the accused is to be treated as having taken reasonable steps to establish the child’s or young person’s age if and only if (a)the accused was shown any of the documents mentioned in subsection (4), and (b)that document would have convinced a reasonable person.

Lets unpick that a little. There are two defences open to the accused here. Both require the accused to “believe” the person was 18 or over. The first defence is that the accused asked the person for ID and the ID would have convinced a “reasonable person” that it was genuine. Accepted forms of ID for this purpose are a passport, photo drivers licence, or PASS accredited card (this is to be extended to include military ID and EU identity cards, probably in 2013). The second defence is that no reasonable person would have suspected from the appearance of the child or young person that they looked under 18. So if the person trying to buy the drink looks 18 or over to a reasonable person then the defence is met and it matters not whether ID was asked for or not.

Challenging the Challenge 25 condition

Now consider the mandatory licence condition concerning the provision of an “age verification policy” commonly referred to as Challenge 25. The 2010 Act imposed a new condition 9A on all licences in Scotland in the following terms:

“(1)There must be an age verification policy in relation to the sale of alcohol on the premises.
(2)An “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy alcohol on the premises (“the customer”) if it appears to the person selling the alcohol that the customer may be less than 25 years of age (or such older age as may be specified in the policy).
(3)The condition specified in this paragraph does not apply in relation to any sale of alcohol which takes place on the premises merely by virtue of being treated, by section 139, as taking place on the premises.”

Subsection 3, which refers to s.139 of the 2005 Act, is referring to remote sales so let us leave that aside for the moment. This condition requires what is in essence a Challenge 25 policy. Strangely though, I have looked at this closely and I think the actual wording does not require the licence holder to enforce the policy; only to have such a policy. In other words, the only breach of the condition is if there is no policy; it is not a breach if the policy is not followed! You may argue that this is legal semantics but I will disagree –  the wording is that there “must be an age verification policy”; not that “the licence holder must adhere to the terms of an age verification policy”. It is yet another example of bad drafting in our licensing laws and surely this was not the intention of Parliament. The intention must have been to penalise licence holders who do not follow the terms of the policy.

Test purchasing the Challenge 25 condition?

I was very surprised to read of one local authority using licensing standards officers to “test purchase” the Challenge 25 condition using an 18 year old; and then advising licence holders they were in breach of the condition if they did not ask that person for ID on the subjective view that as far as the officer was concerned the 18 year old appeared under 25. Firstly, the Act makes no provision for this sort of action and in my view and such a “test purchase” is ultra vires. Secondly, based on my point above there was no breach of the condition because it only requires that such a policy exists; not that it be implemented. If the premises has a policy then that is the end of the matter. This exposes another problem in the drafting – there is no requirement for the policy to be in writing. How then do you evidence that the policy actually exists? And finally, where or what is the evidential burden regarding what age a “reasonable person” thinks the 18 year old is? The licensing officer must think the person looks under 25. But that is a subjective view. The Licensing Board will not have access to an image of the person for data protection reasons. It is not good enough for a Board to proceed to place sanctions on a licence holder who is deemed to have breached the condition with this lack of evidential burdon; and is instead based purely on the licensing officer saying the test purchaser looked under 25.

Now try to tie all of that in with the legal defence to the actual offence of selling alcohol to a child or young person – that no reasonable person would have believed the person was under 18 – there is no mention of the person having to look under 25. How on earth can the Challenge 25 “message” – that if the person looks under 25 they should be asked for ID – sit comfortably with the fact that the legal defence to the criminal offence is simply that the person looks 18 ? This is a mixed message and a clear lacuna. Let me put this another way; if I think the person before me is 19 and I sell her drink then I have a statutory defence to prosecution for the offence of under age selling; but simultaneously I may be in breach of a licence condition (leaving aside my comments above on what may constitute a breach of the challenge 25 condition) which is a separate offence and to which there is no statutory defence!

Even worse, Challenge 25 is not referable to the s.110 notice – which only advises customers that the “test” for getting served is that they look 18; not that they look under 25. There is no legal requirement to display Challenge 25 literature, posters or wording.

Challenge 25 was brought in as another “headline” policy. The public are told for the umpteenth time that the Government is cracking down on “rogue shopkeepers”. It makes good press. But is it good law?


About Stephen McGowan

Leading Scottish licensing solicitor at TLT LLP.
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2 Responses to Challenging Challenge 25

  1. Pingback: Age Verification and Acceptable ID | Stephen McGowan's Licensing Blawg

  2. David Smith says:

    Hi, Don’t you find that when obvious inconsistencies occur and are not challenged or enforced immediately a few years down the line these become enforceable and are enforced, additions made under other relevant guidelines and are more difficult to challenge as simply they have been in place for many years, a sign of what is to come basically.

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