The Licensing Act 2003 - Culture, Media and Sport Committee Contents


Examination of Witnesses (Questions 96 - 99)

TUESDAY 14 OCTOBER 2008

MRS CINDY BARNETT JP AND PROFESSOR JOHN HOWSON

  Chairman: Could I first of all apologise for keeping you waiting quite so long. I hope you have found it interesting. For our final session, we turn to The Magistrates' Association and I welcome Professor John Howson and Mrs Barnett. Philip Davies will begin.

  Q96  Philip Davies: Do your members report any trends in the types or numbers of cases involving how alcohol related disorder coming before you since the Act came into force?

  Professor Howson: The first thing to realise is that the Act was not a big bang; it was a process or deregulation which came at the end of a series of consequences, probably the first of which and most important of which was the movement of pub entertainment licences from the Magistrates' Court to the local authorities in the late 1980s and the subsequent request by a large number of licence holders who obtained entertainment licences for supper licences to go with them (which would allow them to stay open until 12 o'clock or one o'clock at weekends), so that by the time we came to 2005 a very large number of on-licence premises were already open for most of the hours they still are—although, as we have heard in the previous sessions, there are a number of those that have now extended that towards two o'clock, three o'clock or even four o'clock. The other big change was that of the case of the Preston Justices in the late 1990s, when the issue of need for a new licence was raised and courts were effectively told that the need principle no longer applied and selling alcohol was no different from selling shoes; that the markets would compete with each other and it would self-regulate in terms of the number of premises as a commercial decision. Both of those were well in place by the time we got to 2005. Both of those, I think, had produced some of the rise in violence related to alcohol which we saw ahead of the 2005 Act, and may explain why numbers have not gone up significantly, according to reports, since the Act came in but have been spread out, in some cases, with all the resource implications the police talked about, until the early hours of the morning.

  Q97  Philip Davies: What about the point the police just made: that in crimes involving alcohol, the alcohol is treated as a mitigating circumstance when sentencing, but it should be treated as an aggravating feature.

  Mrs Barnett: It is factually incorrect according to our guidelines. Those are the definitive guidelines to which we have to have regard. They do not tell us what to do, but we have to consider them. Committing an offence while under the influence of either drink or drugs is an aggravating factor. That does not mean that we would not look at each case individually and consider the circumstances. Certainly, if it is a question of the degree of knowledge and mens rea (to use the phrase) it is possible that if somebody is blind drunk we might consider that as one of the factors from the point of view of the seriousness of the offence. Generally speaking, being under the influence is an aggravating factor.

  Professor Howson: I think probably the issue is the other one that the police talked about: whether it is treated as a mitigating factor earlier on in the process, before it even gets to us—as to whether or not people are bundled in the back of the ambulance and taken to A&E and not charged or allowed to sleep it off or given a fixed penalty or a penalty notice for disorder rather than being brought to court. We would certainly say that if there is anything that is alcohol related, and violence is involved, that should not be given a fixed penalty or a penalty notice for disorder but should come in front of the court in every occasion. The fact is that 10% of assaults to PCs in some areas are now dealt with by conditional cautions. If there is alcohol involved in that, it should come in front of a court—not least because we have the ancillary orders in terms of being able to ban people from licensed premises.

  Q98  Philip Davies: In your evidence you have suggested changing the offence of persistently selling alcohol to a person under 18 from "three strikes and you are out" to "two strikes and you are out". Have either of you ever worked on a check-out?

  Professor Howson: We have not suggested that. We believe that is Government policy. We are slightly confused as to whether it is a reinterpretation of the current "three strikes and you are out" in that it is the third strike and you are out, or whether they are intending to bring forward primary legislation to bring alcohol into line with tobacco. You cannot lose your licence for selling tobacco, because there is not one, but presumably you would lose your licence on two from the point of view of selling alcohol. We are slightly confused about that, but we understood that is what the Government are thinking about and not us.

  Q99  Philip Davies: In my experience, most retailers do try to stop people buying alcohol under the age of 18—often in very difficult circumstances, I might add, and under lots of pressure. Do you not think it would be more effective if the focus was on stiffening up the punishments for people trying to buy alcohol under 18 rather than for those people selling it? Often it is the ones who are buying it who are the only ones who know they are committing a crime. Sometimes the people who are selling it do not realise they are selling it to somebody who is under age.

  Professor Howson: I am slightly confused by that. Do you mean that the retailer finds somebody who they think is under 18 and says, "I am not selling it to you. Hang on there while I ring the police because you have been trying to buy alcohol"? How would you police that in practice? We know how you can police the present situation, which is through test purchasing: you send somebody in and the retailer is clearly selling to somebody without asking them for proof of identity, proof of age or anything. But how would your system work in practice?


 
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