In the nick of time, just days before new mandatory conditions were added to every on-licensed Premises Licence in England & Wales, both the Department of Culture, Media & Sport (DCMS) and Home Office have issued guidance on how the new conditions should be interpreted.
Quite why it takes two Government departments to do this, we can only speculate.
This decision becomes even more baffling when you realise that on occasions, the two sets of guidance actually contradict each other!
Application The three new mandatory conditions which are added from 6 April 2010 are applicable to all on-licensed premises from that date, regardless of whether the conditions are physically on the Premises Licence for the premises or not.
Ignorance of them will therefore not be a defence. The new mandatory conditions do not apply to Temporary Events Notices (as per the existing mandatory conditions).
However, whilst we cannot envisage licensed premises applying for TENs to circumvent the need for a DPS, personal licence holders to authorise sales of alcohol or for door supervisors to be licensed, we can imagine licensed premises applying for a TEN to allow a controversial alcohol promotion to take place at the premises.
Of course, were they to do so, we fully expect the Police to object to the TEN as undermining the crime objective, if the application made it clear why the TEN was being made. But if the application does not mention the promotion and nothing occurs at the premises which undermines the licensing objectives, then the Police are going to find it difficult to justify a review against those premises.
Would it not have been better simply to have made TENs subject to the new mandatory conditions?
We certainly fail to see the difficulty in asking those organising TENs not to allow irresponsible promotions and games like the dentist’s chair and to make tap water freely available.
Pre-Existing Conditions The DCMS updated guidance makes it clear that the new mandatory conditions override any existing conditions on a Premises Licence insofar as those existing conditions are identical to, or inconsistent with or less onerous than the new mandatory conditions.
Of course, the way in which the new mandatory conditions impact on the pre-existing conditions will not be recorded in your Premises Licence, and whilst the guidance encourages Licensing Authorities to contact their Licensees to make them aware of the new conditions, we have yet to see any evidence this has happened.
This is a recipe for confusion.
Activities Outlawed The DCMS guidance sets out a number of activities which it believes might be banned as a result of the new mandatory conditions:
Drinking Games Games which require participants to drink a quantity of alcohol within a time limit or as much alcohol as possible (whether or not this is within a particular time limit) are outlawed.
This may include organised “drink downing” competitions.
The competition does not have to be organised by staff to fall foul of the new mandatory condition, so even if customers were to organise something like this amongst themselves, the premises would fall foul of the law.
The DCMS guidance does make it clear that this does not necessarily prevent “happy hours” from taking place (which will be welcome in those areas where the Police and others are trying to crackdown on these on the back of the new mandatory conditions) as long as “these are not designed to encourage individuals to drink excessively or rapidly”.
Free Alcohol or Fixed Prices Promotions of unspecified amounts of alcoholic drinks for free or for a fixed or discounted price will also not be allowed.
This is likely to apply to deals such as “all you can drink for £10″, as the DCMS guidance points out.
However, what about other discounts?
The Government has a problem here, as nowhere, in either sets of guidance (nor in the Order imposing the new mandatory conditions itself) is discounting defined.
What is the reference point?
Is it what price those premises normally sell alcohol at? In which case this will not be a level playing field.
Is it what the market (either locally or nationally) usually charges? Or is it somehow linked to the cost of the alcohol to the supplier (which gets dangerously close to minimum pricing)?
If an alcoholic drink is the same price every Wednesday (but a different price on other days of the week) is this truly a discount or just an unchanging pattern of trade?
The new mandatory conditions and the DCMS guidance also targets those promotions aimed at a particular group of customers, e.g. women or students.
The DCMS guidance proposes: “A common sense approach … for example, by specifying the quantity of alcohol included in the promotion and not targeting groups that may become more vulnerable, or present a greater risk of crime and disorder, as a result of excessive alcohol consumption”.
So it appears that offers such as “10 pints for £10″ may not fall foul of the new mandatory conditions, which we are sure is helpful. Unfortunately, the Home Office guidance directly contradicts this by citing both “pay £5 entry and then drink up to 12 shots and “10 pints for £10″ as prohibited promotions.
This is not, in our view, what the new mandatory conditions says.
The DCMS has it right. Moreover, which groups do the DCMS think do not become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption?
We had thought the Government wished to outlaw excessive alcohol consumption altogether.
Now the DCMS seems to suggest they may be groups who are not harmed by this!
In fact, we wonder why the wording relating to “a group defined by a particular characteristic” is even included in the new mandatory condition relating to free or discounted alcohol, bearing in mind the condition outlaws such promotions “to the public”.
It seems to us that either a particular promotion will fall foul of the new condition, or not, whether or not it is aimed at a particular group or not.
The Home Office guidance does not help at all, bearing in mind that one of the groups it gives as an example is “fans of a specific sporting team” which seems to suggest a promotion aimed at all football fans would be allowed!
The Elephant in the Room What is clear, from both sets of guidance, and from the new mandatory conditions, is that all of the above activities which might be outlawed by the new mandatory conditions, can only be prohibited if they are organised: “In a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children”.
If not, then you can still go ahead and organise them.
If that’s the case, then do these new mandatory conditions take us any further than the current law?
Surely if a licensee is being irresponsible in the way that it promotes the sale of alcohol, then even before the advent of these new mandatory conditions, the enforcement authorities could take them to task?
The only difference here is that the enforcement authorities are given explicit powers to prosecute the offenders as well as review their Premises Licence, for example.
However, we have found ourselves dealing with cases where breach of licensing conditions have taken place, but the enforcement authorities have failed to prosecute (presumably because they do not have the evidence or resources) but have reviewed the licence.
The DCMS and Home Office must be hoping this changes. A Warning Certainly, the Home Office has given both enforcement authorities and the trade several huge hints at this in its guidance document: “As the new conditions are mandatory licensing conditions, any breaches will be treated in the same way as breaches of existing conditions.
Failure to comply with any conditions attached to a licence or certificate is a criminal offence, which on conviction would be punishable by a fine of up to £20,000 or up to six months imprisonment or both.
In most cases, we would expect there to be a review of those premises.
As these new conditions are mandatory and apply across England and Wales, we would expect Licensing Authorities to take any breach seriously”.