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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