Posted by Woods Whur | Alcohol

The Licensing Act 2003 sets out the various licensable activities for which some form of authorisation under the Act is required. One of the licensable activities listed within the Licensing Act is the sale by retail of alcohol. Unhelpfully, the Act provides no definition of “sale” therefore interpretation of the word should be given its ordinary dictionary meaning which is; “exchange of a commodity for money or other consideration”. Case law has determined that there is no sale if a bona fide gift of alcohol is made to a person, therefore no licence is required as there would be no offence in connection with the sale of alcohol.

Consideration has to be made as to whether alcohol is sold by way of retail sale, where customers can only receive a drink upon purchase of a wedding dress, i.e. a sale. There is case law arguing this point and, broadly, the Courts deem that if payment is required (even when the main sale is not that of alcohol) then it is deemed that a sale of alcohol has taken place and a licence will be required for such a sale to take place. The relevant case that addressed this was a case called Doak -v- Bedford [1964] 2 QB 587. In this case, the defendant held parties at her premises for which £1 payment was made in advance where music and dancing took place and food and drinks (both alcoholic and non-alcoholic) were available. The magistrates acquitted the defendant for the offence of selling intoxicated liquor under Section 120 of the Licensing Act 1953 ( selling alcohol without a licence) but this decision was appealed and it was ultimately held that an offence had been committed. The Judge in the appeal case, Justice Paull, stated: “If I pay money for the right, inter alia, to pick out such goods as I desire from a shelf and make those goods mine, in my judgment when I so pick out such goods, those goods have been sold to me.” There is another case that dates back to 1908, Horgan v Driscoll, which also supports the above appeal case of Doak. The facts of this case concern a lodger paying a boarding house-keeper a fixed sum for board and lodging. Within the price of this included bottles of porter which could be consumed if they so desired. It was held that there was a sale of the porter and the boarding-house keeper was liable for the sale of alcohol without a licence. In the case of Horgan v Driscoll, Lord O’Brien CJ stated; “The fact that there was a mingling in the contract for the supply of porter and other things did not prevent the transaction being a sale”. The legislation has since changed, as we now have the Licensing Act 2003, but the legal principles of interpretation of the definition of retail sale remain.

Penalties for providing alcohol by way of retail sale (i.e. without a licence) fall under Section 136 of the Licensing Act 2003. It is a criminal offence to sell alcohol without a licence and the potential sentence for doing so is liable to imprisonment for a term not exceeding six months or a fine set by the Magistrates’ Court (which is unlimited).

In the instances where bridal shops offer a complimentary alcoholic drink to each prospective customer, regardless of whether the customer will proceed to buy a dress, then this would be classed as a gift and therefore no requirement for a retail sale.

It’s not usually just the bride to be that will attend a bridal shop, they are likely to bring along a number of family and friends to share the special occasion with. So what are the implications of bringing someone under the age of 18 with them and they are provided with a glass of bubbly on arrival? The main offence concerning the sale of alcohol to children is contained within Section 146(1) of the Licensing Act 2003, which sets out that a person commits an offence if they sell alcohol to an individual aged under 18. The key word here, again, is that of ‘sale’. There has to be a sale for a person to commit an offence under this section. It is not illegal to provide alcohol to children under 18, but above the age of 5, at home or at private premises. Although this is the law, it is not recommended that children are readily provided with free alcohol at private premises such as a bridal shop due to the obvious safeguarding and health implications.

It is a common sight for brides to be to make an occasion out of wedding dress shopping and it is up to the bridal shops to understand the law in relation to providing alcohol. Special consideration should be made to those bridal shops that may charge a fee for prospective brides to attend the appointment in exchange for a glass of fizz, as this would most definitely be classed as a retail sale of alcohol and therefore a licence would be required.

Next time you consider cracking open the bubbly with a client, please take care and think about whether this may be classed as a retail sale of alcohol.