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A night down at the local or on the town has changed in so many ways – especially with modern technology. The days of an “I’ll have a pint of your best” instruction to the landlord or landlady over the bar are becoming fewer and fewer, particularly with the presence of the Internet and on-line shopping, and apps where you can order and pay for your drink without leaving the comfort of your chair.

But what are the implications for the licensing trade and pub, club and restaurant owners with all this 21st century stuff? The United Kingdom has had licensing laws of some variety in place since the 1700s when the Gin Act 1751 restricted gin producers to selling only to licensed premises, introducing the very concept of alcohol licensing. Gin was so much more popular and cheaper than beer back then. Of around 15,000 drinking establishments in London, 50 per cent were ‘gin shops’.

A fundamental aspect of alcohol licensing law is the age restriction for alcohol sales. An establishment selling alcohol, whether to be consumed on or off the premises, must satisfy itself that the person attempting to buy the drink is aged 18 or over. The Licensing Act 2003 requires that the ‘responsible person’ (the holder of a premises licence, the designated premises supervisor, or someone aged 18 or over who is authorised by the first two) must take all reasonable steps to satisfy themselves of the customer’s age. They must ask for valid ID such as a driving licence, passport or a proof of age card bearing the PASS hologram.

But what about Internet sales? What happens when an underage person orders (and pays for) alcohol online? Some online companies carry out ID checks before the order is accepted but far too many still do not. The question is, has a sale been made the moment an order is placed, and payment has been taken?

The same issue arises with the use of apps that allow customers who are already inside a pub, restaurant or club to order and pay for a drink or some food and have it delivered to their table. As payment is taken at the point of ordering, the same question of ID checks remains. Wetherspoons uses such an app throughout its pubs. A customer orders a drink, makes payment and sits back and waits for it to appear at their table. If that person is under 18, has Wetherspoons broken the law?

Lawmakers have addressed the dilemma to clarify what the legal position is. Referring to the Mandatory Conditions that attach to a Premises Licence, Home Office guidance from 2018 stipulates:

“The mandatory condition requires that age verification takes place before a person is served alcohol. Where alcohol is sold remotely (for example, online) or through a telephone transaction, the sale is made at this point, but the alcohol is not actually served until it is delivered to the customer.”

 So, when the bar person or waiter takes the drink over to the customer and decides that an ID check is warranted, it is at this point that they must satisfy themselves that the customer is 18 or over. It is at this point that the business either satisfies their obligation under the law or breaks it.

John Mousicos is a trainee solicitor with Wollens and is based at their office in Barnstaple. A mature student, John was a restaurateur in London in another life so has knowledge of the licensing, hospitality and leisure industry.

He says: “Whether a refund is offered if a customer cannot prove their age is a matter for each individual business.

“It would, however, be legally sensible to include something in the app terms and conditions – information that hardly anybody reads but something businesses rely on if things go wrong.

“An app should feature a set of terms and conditions, in the way that a website does but it is advisable to include an additional warning at the point of ordering that makes it absolutely clear: ‘By submitting this order, you confirm that you are 18 years or over. We may ask you for ID when we serve your drink to you. If you cannot prove your age on request, your order will be cancelled, and no refund will be given.’

 “This satisfies any related contractual obligation and means that drinking establishments are not losing money by mixing gin and tonics that they cannot serve or, as is more likely, opening bottles of alcopop that go to waste.”

You can contact Wollens on [email protected]