Clause 139 - Sale of alcohol to a person who is drunk

236.     This clause makes it an offence 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 (see the definition in clause 158). The clause thus effectively re-enacts the existing offences in sections 172(3) and 172A(3) of the Licensing Act 1964. Subsection (2) of this clause sets out the categories of person who may commit the offence. These include any person who works at the premises in a capacity that gives him the authority to sell the alcohol, a premises licence holder or designated premises supervisor, an officer or member of a club who is present at the time of the sale and who has authority to prevent it, and a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises. Subsection (3) provides that the offence also covers supplies of alcohol by or on behalf of a club to or to the order of a member of the club.

Clause 140 - Obtaining alcohol for a person who is drunk

237.     This clause makes it an offence knowingly to obtain or attempt to obtain alcohol for consumption on relevant premises (see the definition in clause 158) by a person who is drunk. The clause thus effectively re-enacts the existing offence in section 173(1) of the Licensing Act 1964.

Clause 141 - Failure to leave licensed premises etc.

238.     This clause provides that a person who is drunk or disorderly commits an offence if he fails to leave relevant premises (see the definition in clause 158) at the request of a police constable or a person listed in subsection (2), or if he enters (or tries to enter) such premises when asked not to by such a person. No offence will be committed if the person has a reasonable excuse, for example, if he is disabled or injured and so unable to leave the premises. The persons listed in subsection (2) are:

any person who works at the premises in a capacity that gives him the authority to make that request,

• a premises licence holder or designated premises supervisor,

• an officer or member of a club who is present at the time of the sale and who has authority to make that request, and

• a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises.

239.     Subsection (4) provides that a police constable must help to expel drunk or disorderly individuals from relevant premises, or help to prevent them entering as the case may be, if requested to do so by anyone listed above. The clause thus re-enacts the provisions of section 174 of the Licensing Act 1964 but unlike that section is not limited to premises with a licence for alcohol sales.

Clause 142 - Keeping of smuggled goods

240.     This clause provides that it is an offence knowingly to keep or allow to be kept, on relevant premises (see the definition in clause 158), any unlawfully imported goods or goods on which duty has not been paid. Subsection (2) sets out the categories of person who may commit the offence. These are

• any person who works at the premises in a capacity that gives him the authority to prevent those goods from being kept on the premises,

• a premises licence holder or designated premises supervisor,

• an officer or member of a club who is present at the time when the goods are kept on the premises and who has authority to prevent them being so kept, and

• a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises.

Subsection (4) provides that a court which convicts a person of this offence may order the confiscation of the goods in question and their containers, which may then be either destroyed or dealt with as the court orders.

Clause 143 - Allowing children into licensed premises

241.     This clause provides that in order to enter a public house, nightclub or similar establishment whose primary purpose is the consumption of alcohol, all children aged 14 or under must be accompanied by an adult over the age of 18.

Clause 144 - Sale of alcohol to children

242.     Existing legislation ties the offence of selling alcohol to children to licensed premises. This clause makes it an offence to sell alcohol to children anywhere. Subsections (2) and (3) further provide that it is an offence for a club, or a person on behalf of a club, to supply alcohol to or to the order of a child who is a member of a club, or to any child on the order of a member of a club. Subsection (4) provides a defence if the seller believed that the purchaser was 18 or over and either he took all reasonable steps to establish the purchaser's age or nobody could reasonably have suspected from the purchaser's appearance that he was under 18. The second limb of that defence would cover a case where the purchaser who was under 18 looked exceptionally old for his age. The defendant will be deemed to have taken 'all reasonable steps' if he asked the individual for evidence of his age. However, if it is proved by the prosecution that the evidence of age was such that no reasonable person would have been convinced by it (for example if the proof of age was either an obvious forgery or clearly belonged to another person), the defence will fail. Subsection (6) provides a further defence in circumstances where the act or default which led to the accused being charged was by someone other than the person charged with the offence (for example, where the manager of a pub is charged with the offence although the actual sale was made by a barman) if the person charged exercised all due diligence to avoid committing the offence.

Clause 145 - Allowing sale of alcohol to children

243.     This clause provides that it is an offence knowingly to allow the sale (or in, the case of clubs, the supply) of alcohol to a child, on relevant premises (see the definition in clause 158). Subsections (2) and (4) set out the categories of person who may commit the offence. These include any person who works at the premises in a capacity that gives him the authority to prevent the sale (or supply), and, in the case of a supply by or on behalf of a club, an officer or member of the club who is present at the time of the supply in a capacity that gives him authority to prevent that supply.

Clause 146 - Sale of liqueur confectionery to children under 16

244.     This clause makes it an offence to sell liqueur confectionery - as defined in clause 188(2) - to a child under 16, or for a club or person on behalf of a club to supply it to or to the order of such a child. Subsection (3) provides a defence if the seller believed that the purchaser was 16 or over and if either he took all reasonable steps to establish the purchaser's age or if nobody could reasonably have suspected from the purchaser's appearance that he was under 16. The defendant will be deemed to have taken 'all reasonable steps' if he asked the individual for evidence of his age, and that evidence was such that it would have convinced a reasonable person. Subsection (5) provides a further defence in circumstances where the act or default which lead to the accused being charged was made by someone other than the person charged with the offence, if the person charged exercised all due diligence to avoid committing the offence.

Clause 147 - Purchase of alcohol by or on behalf of children

245.     Subsection (1) makes it an offence for a child to buy or attempt to buy alcohol whether or not on licensed premises, or, if he is a member of a club, for him to have alcohol supplied to him by the club (in circumstances where he actively caused the supply) or attempt to do so. The offence will not be committed if the child was asked by a police constable or trading standards officer, acting in the course of their duty, to buy or attempt to buy alcohol in order to conduct test purchasing operations to establish whether licensees and staff working in licensed premises are complying with the prohibition on underage sales.

246.     Subsection (3) makes it an offence for a person to act as an agent for a child in purchasing or attempting to purchase alcohol, for example, if a child gives money to an adult to buy alcohol in an off-licence for consumption by the child. The offence also applies where a member of a club has alcohol supplied to a child or attempts to do so. Subsection (4) makes it a further offence for a person to buy or attempt to buy alcohol for consumption by a child on licensed premises, for example, where a father buys a drink for his son in a pub. The offence also applies where a member of a club has alcohol supplied to a child (in circumstances where he actively caused the supply) or attempts to do so. Subsection (5) provides that this offence will not be committed if a person aged 18 or over buys beer, wine or cider for a person aged 16 or 17 to consume with a table meal on relevant premises (see the definitions in clause 158), in circumstances where the 16 or 17 year old is accompanied by an adult. This provision thus re-enacts the existing exemption in section 169D of the Licensing Act 1964.

Clause 148 - Consumption of alcohol by children

247.     Subsection (1) makes it an offence for a child knowingly to consume alcohol on relevant premises (see the definition in clause 158). The offence will thus not be committed if the child inadvertently consumes the alcohol, for example if his drink is spiked. Subsection (2) also makes it an offence knowingly to allow the consumption of alcohol by a child on relevant premises. Subsection (3) sets out the categories of person who may commit this offence. These include any person who works at the premises in a capacity that gives him the authority to prevent the consumption and, in the case of a supply by a club, to any officer or member of a club who is present at the time of the consumption in a capacity which allows him to prevent it. Subsection (4) provides that the offences in this clause will not be committed where a 16 or 17-year-old consumes beer, wine or cider with a table meal (see the definition in clause 158) in circumstances where he is accompanied by an adult.

Clause 149 - Delivering alcohol to children

248.     This clause sets out offences relating to the delivery of alcohol to children. Subsection (1) provides that it is an offence for someone working on relevant premises (see the definition in clause 158) knowingly to deliver to a child alcohol which is sold on the premises or supplied there by or on behalf of a club. The offence would cover, for example, circumstances where a child takes delivery of a consignment of alcohol bought by his father from an off-licence (in a case where the exceptions mentioned below do not apply). Subsections (2) and (3) provide that it is also an offence for a person working on relevant premises and in a position which gives him authority to prevent it knowingly to allow another person to deliver alcohol to children. This offence would cover, for example, a person who authorises a delivery of the sort mentioned above. Subsections (4) and (5) provide that this offence will also apply in the case of a delivery by or on behalf of a club or to or to the order of a member of the club, where the delivery is allowed by a person working on the premises in a capacity which gives him authority to prevent it.

249.     Subsection (6) provides that the offences in this clause are not committed if the alcohol is delivered to the home or place of work of the purchaser or person who is supplied (for example, where a child answers the door and signs for the delivery of his father's order at his house), nor where the job of the minor who took delivery of the alcohol involves delivery of alcohol (for example, where a 16 year old office worker is sent to collect a delivery for his employer), nor where the alcohol is sold or supplied for consumption on the relevant premises.

Clause 150 - Sending a child to obtain alcohol

250.     This clause re-enacts the existing offence (in section 169G of the Licensing Act 1964) of knowingly sending a child to obtain alcohol which is sold for consumption off the premises, or which is supplied by or on behalf of a club to or to the order of a member of the club for such consumption. This offence would cover, for example, circumstances where a parent sends their child to an off-licence to collect some alcohol which had been bought over the telephone. Subsection (2) provides that the offence will be committed regardless of whether the child is sent to the actual premises from where the alcohol is sold or supplied, or whether he is sent to other premises to which the alcohol has been sent. Subsection (3) provides that the offence will not be committed where the minor's works at the premises in question and his job involves taking deliveries of alcohol. Subsection (4) provides that the offence will also not be committed if the child is sent by a police or trading standards officer, in the course of his duty, to obtain alcohol to test the compliance of the retailer with the prohibition on underage sales.

Clause 151 - Prohibition of sales in the presence of children

251.     This clause makes it an offence to knowingly allow a child under the age of 14 to be in that part of relevant premises (see clause 158) which are licensed principally for the sale by retail of alcohol where a sale of alcohol takes place unless accompanied by an adult. This offence may be committed by a premises licence holder, designated premises supervisor or anyone authorised to sell alcohol.

Clause 152 - Prohibition of unsupervised sales by children

252.     This clause re-enacts provisions in the Licensing Act 1964 so that it is an offence knowingly to allow an individual under the age of 18 to sell or, in the case of a club, to supply alcohol unless each such sale or supply has been specifically approved. Subsection (4) sets out the categories of person who may commit this offence. These are

• a premises licence holder, designated premises supervisor or someone over 18 authorised by them, or

• in the case of a club, any member of officer of the club who is present on the premises in a capacity that enables him to prevent the supply, or

• in a case where the premises are used for a temporary permitted activity, the premises user or a person over 18 authorised by him.

Subsection (2) provides that the offence in this clause is not committed where the alcohol is sold for consumption with a table meal in a part of the premises used only for this purpose. The effect of this exception is that, for example, a minor will be able to serve alcohol in a restaurant.

Clause 153 - Enforcement role for weights and measures authorities

253.     This provision re-enacts section 169I of the Licensing Act 1964 which confers on weights and measures authorities the role of conducting test purchase operations to check retailers' compliance with the prohibition on underage sales. In practice, these activities are usually carried out by trading standards officers. Subsection (2) provides that a weights and measures inspector may either make purchases himself or may authorise another person to do so. Thus, for example, he might lawfully ask a child to attempt to purchase alcohol.

Clause 154 - Confiscation of sealed containers of alcohol

254.     This clause amends the Criminal Justice and Police Act 2001 and the Confiscation of Alcohol (Young Persons) Act 1997 so that the police have the power to confiscate alcohol in sealed containers from anyone in an area which has been designated by the local authority for the purposes of curbing anti-social behaviour and from people under 18 in any public place. Police powers in relation to confiscation of alcohol currently apply only in relation to opened containers.

Clause 155 - Prohibition of sale of alcohol on moving vehicles

255.     This clause makes it an offence to sell alcohol by retail on or from any vehicle which is not permanently or temporarily parked. Subsection (3) provides a defence in circumstances where:

• the sale was mistaken, was due to the seller relying on information given to him, was the fault of another person or was due to some cause beyond his control, and

• he took all reasonable precautions and exercised all due diligence to avoid committing the offence. For example, a person might mistakenly believe the beverages he is serving are non-alcoholic.

Clause 156 - Power to prohibit sale of alcohol on trains

256.     Subsections (1) and (2) provides for the prohibition of sales of alcohol at specified stations and on specified trains travelling between those stations. A prohibition order may be made by local magistrates on the application of a police officer of at least the rank of inspector, if the magistrates are satisfied that the order is necessary for the prevention of disorder. Subsection (3) requires the police officer who applied for the order (or another police officer who has been designated by the chief officer of police) to serve a copy of the order on the train operator or operators concerned. It is to be an offence knowingly to sell alcohol, or to permit its sale, in contravention of such an order.

Clause 157 - False statements made for the purposes of this Act

257.     This clause provides that it is an offence for a person knowingly or recklessly to make any false statement in connection with applications and notices under the Bill.

Part 8: Closure of premises

General

258.     Part 8 of the Bill contains provisions empowering the courts and the police to make temporary closure orders in respect of certain premises.

259.     It re-enacts with some modifications the provisions to be found in sections 179A to 179K and 188 of the Licensing Act 1964. In particular the provisions of the Bill are not restricted to premises licensed for the sale of alcohol, but extend to all relevant premises (see clause 160(8)).

ECHR considerations

260.     Clauses in this Part raise issues under Article 6 (determination of civil rights and obligations) and Article 1 of Protocol 1 (protection of property). Clause 159 empowers a magistrates' court to make an order closing all premises, with a premises licence or temporary event notice, located in an area experiencing or expected to experience disorder. The exercise of this power could interfere with the rights of those who have proprietary interests in the premises concerned, or who derive economic benefits from a business run from those premises. The interference flowing from a closure order would however only occur where it is felt that the making of an order is necessary to prevent public disorder and would consequently be justified as a control of use of property in accordance with the general interest.

261.     Clauses 160 - 170 raise similar issues since they provide for the police to close particular premises in cases of actual or likely disorder or cases of public nuisance. Once again, the interference would only occur where necessary to prevent public disorder and would consequently be justified as a control of use of property in accordance with the general interest.

Clause 159 - Orders to close premises in an area experiencing disorder

262.     This clause sets out the power to close all premises with a premises licence or in respect of which a temporary event notice has effect which are located in a particular geographical area for a period not exceeding 24 hours. The power is exercisable by a magistrates' court on application from a police officer of the rank of superintendent or above. It is exercisable only where court think such an order is necessary to prevent disorder. It is an offence to keep open premises that are the subject of a closure order. Clause 170(2) and (3) make provision about when premises are "open" for these purposes.

Clause 160 - Closure order for identified premises

263.     This clause provides a senior police officer with the power to close specific premises for up to 24 hours. A closure order may be made upon two grounds, the first of which is where there is actual or likely disorder to the extent that the closure of the related premises is necessary in the interests of public safety. The second ground is where closure is necessary to prevent a public nuisance, owing to the noise emanating from the premises.

264.     In deciding whether to make a closure order, the police officer must have regard to the conduct of certain defined individuals at the premises. The purpose of this provision is to allow discretion in cases where, for example, it is clear that those managing the premises are treating the disorder or disturbance with sufficient gravity and are taking steps to reduce it or bring it under control.

Clause 161 - Extension of closure order

265.     This clause empowers a senior police officer to extend, in certain limited circumstances, the period for which a closure order may have effect. Such an extension may be for a further period of 24 hours. More than one extension may be made.

Clause 162 - Cancellation of closure order

266.     This clause empowers a senior police officer to cancel a closure order at any time before it has been considered by a magistrates' court pursuant to the latter's power in clause 164. Such a cancellation must be made where the officer does not reasonably believe that closure of the premises is necessary because of disorder, likely disorder or because of noise emanating from the premises. The officer must give notice to the licence holder, designated premises supervisor, premises user or manager of the premises where it is decided to cancel a closure order.

Clause 163 - Application to magistrates' court by police

267.     After a closure order comes into force, the responsible senior police officer must apply to the magistrates' court as soon as possible to allow for the consideration of the order by the court. Notice of such an application and details of the order itself must also be given to the relevant licensing authority (as defined in clause 170).

Clause 164 - Consideration of closure order by magistrates' court

268.     The relevant magistrates' court to whom an application has been made under clause 161 must hold a hearing. The court can take a number of courses of action in relation to the order, including revoking the closure order, or ordering its extension until the licensing authority has conducted a review of the order under clause 166. The court may also make an order determining that the premises should be, or should remain, closed until such a review has been completed.

Clause 165 - Appeal from decision of magistrates' court

269.     This clause provides a right of appeal to the Crown Court against decisions made by a magistrates' court under clause 164.

Clause 166 - Review of premises licence following closure order

270.     Where a licensing authority has received notice from a magistrates' court pursuant to clause 160 (closure order for identified premises), in respect of a closure order having effect in relation to premises, it must review any premises licence having effect in respect of those premises.

271.     The licensing authority may take steps to further the licensing objectives including revocation of the licence, modification of the licence conditions, the exclusion of certain licensable activities or the removal of the designated premises supervisor. For example, where the licensing authority determines that the lack of experience or expertise of the designated premises supervisor has contributed to the level of disorder that has given rise to a closure order, it may specify that the individual concerned should be removed from that position. Similarly, it may determine that imposing a condition on the licence to the effect that additional security staff should be employed would reduce disorder.

Clause 167 - Provision about decisions under section 166

272.     This clause makes provision for premises subject to a closure order under clause 160 (closure orders of identified premises) to remain closed during any appeal against the licensing authority's decision to revoke the premises licence (although the licence would remain in force). Under Schedule 5 a magistrates' court may order the re-opening of the premises pending the appeal.

Clause 170 - Interpretation of Part 8

273.     This clause sets out various definitions for the purposes of this Part. The clause explains in what circumstances premises will be treated as "open" and states that certain activities will not count for the purposes of determining whether premises are "open". These are -

• in a case where the premises do not have a premises licence, but have a temporary event notice, any activities (other than licensable activities) taking place outside the event period in the notice

• any use for qualifying club activities under a club premises certificate

• any supplies of hot food and drink which are not licensable activities by reason of their being supplied to members of a club or the guests of members

Part 9: Miscellaneous and Supplementary

General

274.     This Part of the Bill covers a number of miscellaneous issues.

ECHR considerations

275.     This Part includes clauses 176 and 177 which provide rights of entry, together with a power to use reasonable force, for constables or authorised persons who are investigating licensable activities or offences. Article 1 of Protocol 1 (protection of property) may therefore be engaged as these clauses could interfere with a person's peaceful enjoyment of his possessions. However, the provision can be justified because it is necessary to ensure that the requirements of the Bill are being observed in order to achieve the licensing objectives, and so the rights of entry are in the public interest and are proportionate to achieve their aim.