Finding closure

Chris Rees-Gay examines when a closure notice for persistently selling alcohol to children can be served and how it should be served.

Section 169A of the Licensing Act 2005 makes provision for a "relevant officer" consisting of either a Police Officer of the rank of Superintendent or above, or a Trading Standards Officer to serve a Closure Notice. A notice can be served where there is evidence that a person who is the premises licence holder has committed the offence of persistently selling alcohol to children under Section 147A.

A person will be guilty of an offence under this section, if on two or more different occasions, within a period of three consecutive months; alcohol is unlawfully sold on the same premises to an individual under the age of 18. For a S169A Closure Notice to be served, the relevant officer must consider that there is a realistic prospect of a conviction.

A Closure Notice under this part of the Act is a notice which proposes a prohibition of the sales of alcohol on the premises in question, for a period not longer than 48 hours. The benefit of this type of Closure Notice is that it offers (if the prohibition is accepted), the premises licence holder the opportunity to discharge all criminal liability in respect of the alleged Section 147A offence. The alternative to a Closure Notice is a strict liability offence with potentially severe sanctions – a fine not exceeding £10,000 and a suspension of the licence for up to three months. This fine is soon to be increased to £20,000 when the Police Reform and Social Responsibility Act comes into force.

In order for a valid Closure Notice to be served there are very specific requirements as set out in paragraph 3 of S169A which must be adhered to. We would recommend that should you be served with a Closure Notice, legal advice should be sought.

The key elements are:

• The period for which the sales of alcohol are to be prohibited must be stated and the period should not exceed 48 Hours;
• It must be specified when the prohibition will begin if the Notice is accepted.

Paragraph 5 of this Section explains how the proposed prohibition can be accepted or the right to be tried for the offence can be exercised. Should a Closure Notice be accepted by the premises licence holder there is a requirement for the acceptance to be given within 14 days after the date of the service of the Closure Notice.

Further rules governing how a Closure Notice may be served dictate that it may only be handed to a person on the premises who appears to the relevant officer to have control of, or responsibility for the premises and only at a time when it appears that licensable activities are being carried on.

The Closure Notice must not be given more than three months after the time of the last of the sales to which the alleged offence under Section 147A took place. Also, no more than one Closure Notice may be given in respect of offences relating to the same sales; nor can a notice be given in respect of an offence to which a prosecution has already been brought.

The key element to note in respect of a Closure Notice is that an offence under Section 147A must have occurred. Premises licence holders need to be aware that if an employee accepts a fixed penalty or a caution, under S147A this in itself is admissible as evidence of an unlawful sale of alcohol. It is, therefore, imperative that staff are trained adequately and inform the management of any failed test purchase. Legally an employee does not need to inform the premises licence holder that he has accepted a caution or paid a fine in respect of a failed test purchase.

We would advise that if a test purchase is failed and the employee is offered a fixed penalty or caution then the employee should not accept it until management have been informed and proper legal advice has been taken. The reasons being that there are defences available for this offence, but more importantly from a premises licence holder’s point of view, if a caution or fixed penalty is accepted without their knowledge, they may be unaware of previous unlawful sales that could count towards two in a three month period. There is, therefore, a possibility a premises licence holder could find themselves liable for a S147A offence with there being no opportunity to raise a due diligence defence. Staff training in respect of underage sales is strongly recommended as a means of trying to ensure that this situation does not arise.

Chris Rees-Gay is a solicitor at Woods Whur. He can be contacted on 0113 234 3055 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..