Clause 19: provisions supplemental to s. 18

125.     Clause 19 makes a number of consequential amendments to the Licensing Act 2003.

126.     Subsection (2) prevents functions relating to the taking of interim steps pending a review under section 53C, or the determination itself, being sub-delegated to officers of a licensing authority.

127.     Subsection (3) provides that appeals against a determination made following an application for a review under section 53A can be made by the same persons and in the same manner as in reviews under section 51 of the Licensing Act 2003.

Clause 20: Offence of persistently selling of alcohol to children

128.     Clause 20(1) amends the Licensing Act 2003 by inserting new sections 147A and 147B.

129.     Subsection 147A(1) creates a new offence which is committed if on three or more different occasions in a period of three consecutive months alcohol is unlawfully sold on the same premises to a person aged under 18. The subsection also provides that the offence is only committed if, at the time of each sale, the premises were licensed by a premises licence issued under the Licensing Act 2003 or the premises were being used for a permitted temporary activity under the authority of a temporary event notice given under that Act. The subsection provides that the new offence is committed by the "responsible person", who is the licence holder or premises user or (if there is more than one) by every person who is one of the licence holders or premises users.

130.     Subsection 147A(2) provides that for the purposes of the offence alcohol has been sold unlawfully to a person under 18 if the person making the sale believed the individual to be under 18 or did not have reasonable grounds for believing him to be 18 or over. Subsection 147(3) provides that a person has reasonable grounds for so believing only if he asked the individual for evidence of his age and the evidence produced would have convinced a reasonable person; or no person could reasonably have suspected that the person was less than 18 years of age.

131.     Subsection 147A(5) provides that the minor to whom the sales have been made may be the same individual on each of the three or more occasions, but need not be.

132.     Subsection 147A(6) provides that the same sale may not be counted in respect of different offences for the purpose of enabling the same person to be convicted on more than one occasion of the offence in subsection (1). The same sale may also not be counted in respect of different offences for the purpose of enabling the same person to be convicted of the offence in subsection (1) and offences under sections 146 (sale of alcohol to children) or 147 (allowing the sale of alcohol to children) of the Licensing Act 2003.

133.     Subsection 147A(7) provides that in determining whether an offence under subsection (1) has been committed the following shall be admissible evidence:

• convictions for offences under section 146 of the Licensing Act 2003 (sale of alcohol to children);

• cautions given in respect of such offences under Part 5 of the Police Act 1997; or

• the payment of a fixed penalty under Part 1 of the Criminal Justice and Police Act 2001 in respect of an unlawful sale to a person under 18.

134.     Subsection 147A(8) provides that a person guilty of the offence in subsection 147A(1) shall be liable on summary conviction to a fine not exceeding £10,000.

135.     Subsection 147A(9) provides that the Secretary of State may by order amend subsection (8) in order to increase the maximum fine.

136.     Subsection 147B(1) provides that on the conviction of a premises licence holder for an offence under clause 147A, the court may make an order suspending the premises licence for up to 3 months insofar as it authorises sales of alcohol. This means that other licensable activities carried on at the premises, such as the provision of live music, would be unaffected. It also means that although any sales of alcohol by retail within the period of the suspension would be unlawful, sales of other goods would be unaffected. For example, it could be made unlawful for a supermarket to sell alcohol by retail for the period of the suspension but it could continue to sell other products such a vegetables.

137.     Subsection 147B(2) provides that where more than one person is liable for an offence under clause 147A, no more than one order suspending the premises licence may be made in relation to the premises in question in respect of convictions by reference to those sales.

138.     Subsection 147B(3) provides that subject to subsections (4) and (5), an order so made by a court would come into force at the time specified by the court making the order. Subsection (4) provides that where a magistrates' court has made such an order it may suspend the order pending an appeal. Subsection (5) provides that where an appeal has been made to the Crown Court or to the Court of Appeal (including an application for leave to appeal to the Court of Appeal) against his sentence or conviction, the Court may suspend the order made. In addition, where an offender appeals or applies for leave to appeal to the House of Lords or the High Court, the Court of Appeal may suspend the order.

139.     Clause 20(2) amends the Licensing Act 2003 by providing that the licensing authority may not institute prosecutions for the offence in clause 147A, and that the weights and measures authority may institute prosecutions for the offence. This is because the licensing authority should not have predetermined any related matters should it be required to consider an application for a review of premises licences on grounds relating to the commission of such offences.

140.     Clause 20(3) makes consequential amendments to the Criminal Appeal Act 1968.

Clause 21: Closure notices for persistently selling alcohol to children

141.     Clause 21(1) amends the Licensing Act 2003 by inserting new sections 169A and 169B.

142.     New section 169A(1) provides that a relevant officer may give a closure notice applying to any premises if he has reasonable grounds for believing that an offence under section 147A has been committed in relation to the premises; and that the person liable for the offence, at the time the notice is given, remains the holder, or one of the holders, of the premises licence in respect of those premises. New section 169A(11) defines a "relevant officer" as a police officer of the rank of superintendent or above; or an inspector of weights and measures appointed under section 72(1) of the Weights and Measures Act 1985.

143.     New section 169A(2) defines a "closure notice" for the purposes of clause 169A. It is a notice that proposes a prohibition on sales of alcohol at the premises in question for a period not exceeding 48 hours; and offers the opportunity to discharge all criminal liability in respect of the alleged offence under section 147A by the acceptance of the prohibition proposed in the notice.

144.     New section 169A(3) provides that a closure notice must:

• be in a form prescribed by the Secretary of State in regulations;

• specify the premises to which it applies;

• give particulars of the alleged offence;

• specify the length of the period during which sales of alcohol would be prohibited;

• specify when that period would begin;

• explain the effect of the proposed prohibition and the consequences under the Act (including maximum penalties) of a sale on the premises during the period for which it is in force;

• explain the right of every person who remains or was one of the holders of the premises licence at the time of the alleged offence to be tried for that offence; and

• explain how that right may be exercised and how the proposed prohibition may be accepted.

145.     New section 169A(4) provides that the period of the prohibition on sales of alcohol must not exceed 48 hours. It also provides that the time specified as the time from which the period of the prohibition would begin must not be less than 14 days after the date on which the closure notice was served.

146.     New section 169A(5) provides that in explaining how the right to be tried for the alleged offence under section 147A may be exercised and how the proposed prohibition may be accepted, the closure notice must:

• provide a means of identifying a police officer or trading standards officer to whom notice exercising the option accepting the prohibition may be given;

• set out particulars of where and how that notice may be given;

• require the notice to be given within 7 days after the date on which the closure notice was served; and

• explain the right to be tried for the alleged offence will be taken to have been exercised unless every person who remains or was a holder of the premises licence at the time the notice was given accepts the proposed prohibition.

147.     New section 169A(6) disapplies section 184 of the Licensing Act 2003 (giving of notices) to the arrangements for giving closure notices; and provides that a closure notice must be served on the premises to which it applies.

148.     New section 169A(7) provides that a closure notice may be served only at a time when it appears to a constable or trading standards officer that licensable activities are being carried on there, for example, when the premises are open for sales of alcohol. It also provides that a closure notice may only be given by being handed by a constable or trading standards officer to a person on the premises who appears to the constable or trading standards officer to have control of or responsibility for the premises.

149.     New section 169A(8) provides that a copy of every closure notice given must be sent to the holder of the premises licence for the relevant premises at whatever address for that person is given on the premises licence itself.

150.     New section 169A(9) provides that a closure notice must not be given more than 3 months after the time of the last of the three unlawful sales described in section 147A(1).

151.     New section 169A(10) provides that no more than one closure notice may be given in respect of offences relating to the same sales; and that a closure notice may not be given in respect of an offence in respect of which a prosecution has already been brought.

152.     New section 169B, to be inserted into the Licensing Act 2003, applies where a closure notice is given under section 169A in respect of an alleged offence under section 147A. New section 169B(2) provides that no proceedings may be brought for an alleged offence at any time before the time when the prohibition proposed by the closure notice would take effect.

153.     New section 169B(3) provides that before the time when the prohibition proposed by the closure notice would take effect, if every holder of the premises licence has agreed to accept the proposed prohibition in the manner specified in the notice then:

• the prohibition takes effect at the time specified in the closure notice at the premises in question; and

• no proceedings may be subsequently brought for the alleged offence against the holders of the premises licence or any related offence. New section 169B(5) provides that any related offence would include any offences under sections 146 and 147 of the Licensing Act 2003 to which the alleged offence under section 147A relates.

154.     New section 169B(4) provides that where the prohibition has been given effect, the premises licence is suspended for the period specified in the closure notice insofar as it authorises the sale by retail of alcohol. This means that any sales of alcohol which took place during the period when the premises licence was temporarily suspended would be unauthorised under the terms of the Licensing Act 2003. Under section 136 of the Licensing Act 2003 a person commits an offence if he carries on or attempts to carry on any licensable activity on or from any premises otherwise than under or in accordance with an authorisation; or he knowingly allows a licensable activity to be so carried on. A person guilty of such an offence is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £20,000, or to both.

155.     New section 169B(6) provides that the operation of section 169B is not affected by any contravention of new section 169A(8), which is the requirement to send a copy of every closure notice to the holder of the premises licence for the premises in question.

156.     Clauses 21(2) and (3) amend section 170 of the Licensing Act 2003 by extending the exemption for the police from liabilities for damages to their functions in respect of closure notices and by providing a similar exemption for trading standards officers. Clause 21(4) also amends section 170 of the 2003 Act to extend the exemption to the actions of community support officers in serving closure notices.

157.     Clause 21(5) amends section 171(5) of the Licensing Act 2003 (interpretation of Part 8) by providing a definitions of "trading standards officer" and "weights and measures authority" and "closure notice". "Closure notice" is defined by reference to section 169A. A trading standards officer is defined as a person authorised by a local weights and measures authority to act in the area where the premises in question are situated in relation to proposed prohibitions contained in closure notices. "Weights and measures authority" is given the same meaning as is given to it by section 69 of the Weights and Measures Act 1985.

158.     Clause 21(6) amends Part 1 of Schedule 4 to the Police Reform Act 2002 (powers of community support officers). It provides that a community support officer shall have the capacity of a constable to serve a closure notice.

Clause 22: Directions to individuals who represent a risk of disorder

159.     Subsection (1) provides a constable in uniform with a new power to issue a direction to leave a locality to an individual aged at least 16 who is in a public place. The direction will prohibit their return to the locality for up to 48 hours. Subsection (2) provides that the direction to leave an area could be given if the presence of that individual in the locality is likely to cause or contribute to alcohol-related crime or disorder, or to its continuation. A direction could be given to a person involved in any offence or disorder if alcohol is involved and is not limited to just those offences relating specifically to drunk and disorderly behaviour.

160.     Subsection (3) specifies the matters relating to the form and content of a direction. A direction must be given in writing and take effect either immediately or later if an immediate departure from the locality is for some reason not practicable. The direction must clearly identify the locality to which it relates and the period for which the individual is prohibited from returning. A constable can impose requirements as to how the individual leaves the locality and the route that must be taken. A direction can be varied or withdrawn by any constable. It also provides that the period for which the direction applies may not be extended beyond 48 hours.

161.     Subsection (4) contains safeguards to ensure that a direction may not be given where it prevents an individual from having access to a place where he resides; where he needs to attend for the purposes of employment, education or medical treatment; or as a result of an enactment or court order.

162.     Subsection (5) requires a constable giving a direction to make a record of the key components of the direction.

163.     Subsection (6) provides that an individual who fails to comply with a direction will be guilty of an offence and would be liable on summary conviction to a fine not exceeding level 4 on the standard scale (currently £2,500).

164.     Subsection (7) amends section 64A of the Police and Criminal Evidence Act 1984 to allow the police to photograph the subject of a direction, with or without his consent, elsewhere than at a police station.

165.     Subsection (8) sets out the definition of a public place for the purposes of the direction to leave the locality.

Clause 23: Exclusion orders in respect of licensed premises

166.      Subsection (1) provides in respect of the Licensed Premises (Exclusion of Certain Persons) Act 1980 where a person is convicted by or before a court of an offence committed on licensed premises then the court must consider making an exclusion order prohibiting the person from entering those premises or any other specified premises as described under the 1980 Act. If it is decided not to make an order the court must state that fact in open court and give reasons.

Part 2: Weapons etc.

Clause 24: Using someone to mind a weapon

167.     Subsection (1) provides that it is an offence for a person to use someone else to hide or carry a dangerous weapon so as to make the weapon available to the first person for an unlawful purpose. Subsection (2) sets out non-exhaustive circumstances in which a weapon is to be regarded as being available for an unlawful purpose. The offence could catch a situation where the first person would be committing an offence if he took possession of the weapon from the person minding it, and would also cover a case where the first person was intending to commit an offence with the weapon in the future. Subsection (3) defines "dangerous weapon" for the purposes of this offence as meaning, broadly speaking, a firearm or knife. Subsection (4) provides that in Scotland the clause will not apply in relation to knives, as this issue is devolved.

Clause 25: Penalties etc. for offence under s.24

168.     This clause sets out the penalties for this offence, determined according to the type of dangerous weapon involved and in line with penalties for possession of the particular weapon. In some circumstances the offence will attract a minimum sentence. The clause sets out where the penalties applicable vary between England & Wales, and Scotland. Subsection (10) requires the courts to take the ages of the offender and the person used to hide or carry the weapon into account when considering sentencing. If the offender is 18 or over and the person used is under 18, this must be regarded as an aggravating factor increasing the seriousness of the offence. Subsections (12) and (13) ensure that in a situation where the offender turns 16 during the period when the weapon is being held by someone else, he is liable to be given the stiffer penalties which are faced by a person of that age who is convicted of the offence. These provisions also provide that if either person turns 18 during the period that the weapon is being held, the offence is still liable to be treated as aggravated if at some point in that period the offender was 18 or over and the other person was under 18.

Clause 26: Age limits for purchase etc of air weapons

169.     This clause increases from 17 to 18 the minimum age for acquiring or possessing an air weapon. This will have the effect that the age limit for the purchase of air weapons will be higher than for other firearms; however, purchasers of the latter will have to satisfy the police as to their suitability under the certification process in section 1 of the Firearms Act 1968. Subsection (2) increases the age limit for purchasing or hiring an air weapon. Subsection (3) increases the age limit for possessing ammunition for an air weapon. Subsection (4) increases the age limit for selling an air weapon and letting one on hire. Subsection (5) increases the age limit for making a gift of an air weapon or parting with the possession of one.

Clause 27: Firing an air weapon beyond premises

170.     One type of air weapon misuse involves the reckless firing of an air weapon across the boundary of premises. Existing offences covering this type of misuse are linked to the use of air weapons by young people and consequently apply only to people under 17, not to adults. This clause closes this loophole by making it an offence for a person of any age to fire an air weapon beyond the boundary of premises.

171.     Subsection (2) introduces the new offence by inserting a new section 21A into the Firearms Act 1968. Subsection (3) removes the existing offences in section 23(1) and 23(4) of the 1968 Act.

Clause 28: Restriction on sale and purchase of primers

172.     This clause restricts the purchase and sale of primers to persons who hold a relevant firearms certificate or who otherwise have lawful authority for having them. Primers are components of ammunition which contain a chemical compound that detonates on impact.

173.     Subsection (1) applies the clause to primers that are capable of being used in ammunition for a firearm. Subsections (2) and (3) make it an offence to sell a primer, or anything containing a primer, unless the purchaser:

• is a registered firearms dealer

• sells primers by way of trade or business

• produces a certificate authorising him to possess a firearm of a kind with which the primers being bought can be used

• produces a certificate authorising him to possess ammunition

• produces a certificate authorising another person to possess ammunition or such a firearm, together with that person's authority to purchase primers on his behalf

• shows he is entitled by an enactment (including one passed after this Bill) to possess such a firearm or ammunition without a certificate.

174.     Subsections (4) and (5) make it an offence for a person to buy, or attempt to buy, primers, unless he meets similar criteria.

175.     Subsection (6) makes the offence a summary offence with a maximum penalty of 51 weeks imprisonment or a £5,000 fine, or both. Subsection (7) sets the maximum term of imprisonment to 6 months but this will increase to 51 weeks in England and Wales after the commencement of the sentencing provisions in section 281(5) of the Criminal Justice Act 2003.

Clause 29: Restriction on sale and purchase of ammunition loading press

176.     This clause restricts the purchase and sale of ammunition loading presses, including an ammunition loading die, in the same way and with the same offences and penalties as for primers under clause 28. Ammunition loading presses are pieces of equipment which are used to carry out a range of mechanical operations required to reload a cartridge.

Clause 30: Manufacture, import and sale of realistic imitation firearms

177.     This clause makes it an offence to manufacture, import or sell a realistic imitation firearm. It includes a power to make regulations to provide for exceptions to the new offence.

178.     Subsection (1) applies the offence to a person who:

• manufactures or sells a realistic imitation firearm

• modifies a firearm or an imitation firearm to become a realistic imitation firearm

• imports, or causes to be imported, an imitation firearm.

179.     Subsection (2) allows the Secretary of State to make regulations to provide for exceptions and exemptions to the offence, and to provide for defences in respect of the offence. This will allow for the continuing availability of realistic imitation firearms for legitimate uses such as theatre, films and television. Subsection (3) allows for exceptions, exemptions and defences to be based on the giving of approvals or consents, either for particular cases or for types of cases. Subsection (4) requires the regulations to be set out in a statutory instrument and to be subject to the negative resolution process in Parliament.

180.     Subsection (6) makes the offence a summary offence with a maximum penalty of 51 weeks imprisonment or a £5,000 fine, or both. Subsection (7) sets the maximum term of imprisonment to 6 months but this will increase to 51 weeks in England and Wales after the commencement of the sentencing provisions in section 281(5) of the Criminal Justice Act 2003.

181.     Subsection (8) defines "realistic imitation firearm" as any imitation firearm whose appearance makes it indistinguishable, for all practical purposes, from a particular make or model of firearm or from a firearm falling within an existing category of firearm. An imitation weapon will therefore be caught by the new offence if it is sufficiently similar to a generic type of firearm, even if nobody could point to a particular make and model from which it is indistinguishable. Many children's toys, however, will not be caught as they are distinguishable from real weapons.

182.     Subsection (9) provides that an imitation firearm is not to be regarded as distinguishable if it could only be distinguished by an expert, on close examination or as a result of an attempt to load or fire it.

Clause 31: Specification for imitation firearms

183.     This clause applies where imitation firearms are still permitted to be manufactured, imported or sold and requires them to be constructed in accordance with specifications laid down in regulations by the Secretary of State. The definition of "imitation firearm" for the purposes of this clause is that used in the Firearms Act 1968, namely any thing which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missile.

184.     Subsection (1) provides a power for the Secretary of State to make regulations specifying how imitation firearms must be constructed. For example this will enable the imposition of a requirement that all blank-firing imitations be constructed in such a way that it is impossible to attempt to convert them into firearms firing live ammunition.

185.     Subsection (2) makes it an offence to manufacture or import an imitation firearm which does not conform to those specifications. It also makes it an offence to modify an imitation firearm so that it ceases to conform to the specifications, or to modify a real firearm to create an imitation that does not conform to the specifications.

186.     Subsection (3) makes the offences summary offences with a maximum penalty of 51 weeks imprisonment or a £5,000 fine, or both. Subsection (4) sets the maximum term of imprisonment to 6 months but this will increase to 51 weeks in England and Wales after commencement of the sentencing provisions in section 281(5) of the Criminal Justice Act 2003.

187.     Subsection (5) allows the regulations to provide that an imitation firearm is to be presumed to conform with the specifications if it has been certified to this effect in accordance with arrangements set out in the regulations.

188.     Subsection (6) requires the regulations to be set out in a statutory instrument and to be subject to the negative resolution process in Parliament.