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Emerald Group Publishing Limited
Copyright © 2013, Emerald Group Publishing Limited
“Binge drinking”: target the culprits, not the whole of the bar industry
Article Type: Editorial From: Journal of Money Laundering Control, Volume 16, Issue 2
It seems that scarcely a year passes without another British Government speech on the problems of “binge drinking”, particularly by young people. First Tony Blair’s crusade against anti-social behaviour, then the Brown administration continued with its own concern about the cost to the National Health Service of alcohol abuse. Then, as 2012 closed, the theme was taken up again by the current Coalition Government in a speech by Prime Minister David Cameron. “Something must be done” is the continual refrain. But if each government vows that it will do something – equally unchanging is that the answer to the question what, precisely, that something should be seems elusive. Zero tolerance to anti-social behaviour with on-the-spot fines, publicised by poster campaigns and media coverage, was introduced by the Labour Government – and achieved little. Scotland was proclaimed at having provided the answer: a minimum price per unit of alcohol, thus making excessive drinking simply too expensive. No more “happy hours” in pubs and bars, an end to the “special offers” in the supermarkets. Cameron, in his December speech, felt that the rest of the UK could do well to emulate this. But barely had that speech gone out than cries of protest went up. Moderate drinkers, who, without causing trouble to law enforcement, the health system or other members of the public, enjoy a pint in the local pub or a glass of wine understandably object to being asked to pay even more for the privilege. This on top of the already large excise duties: increases in tax on alcohol are as regular a feature of each passing year as are government expressions of concern on alcohol itself. Meanwhile, the pubs and bars cry out, equally understandably, that minimum pricing will further damage an important and legitimate industry that is already under considerable pressure: it has been stated that 16 pubs in the UK close each week, equating to over 800 per year. And this when the economic crisis is far from over.
Yet a highly effective solution is already in the hands of law enforcement if they but chose to use it: the money laundering laws. It is for this reason that an editorial about alcohol abuse, whether by under-age teenagers or anyone else, appears in a journal dedicated to the fight against money laundering. No new law needs to be passed. A blunt instrument that hits the responsible and the irresponsible alike and threatens to damage an entire sector of our economy, causing significant further job losses, is no more necessary than it is desirable. This editorial cannot, however, be given the simple subtitle, “Let’s go easy on the pubs.” While many, even the majority, of them are responsible, it must be recognised that not all are. In every town, drinkers know which pubs and bars will continue to serve them as long as they are physically capable of handing over the means of payment, while every teenager knows which ones will never ask them to prove their age. Those establishments connive, knowingly, at illegal drinking and the solution proposed here, should the will be found to use it, will not only hit them but hit them hard.
For such connivance constitutes one or more criminal offences. Under section 146 of the Licensing Act 2003 (which in this respect merely re-encapsulates provisions found in previous legislation), sale of alcohol to a person under the age of 18 is an offence. It is worth saying in passing that, although this editorial focuses on pubs and bars, the offence applies equally to off-licences, supermarkets and the like: the prohibition on the sale of alcohol to persons under 18 applies to all. There are due diligence defences: either the person selling the alcohol took all reasonable steps to establish that the person to whom they sold it was at least 18 years of age or the customer’s appearance was such that no reasonable person would have believed that they were under 18. However, it is not those unwittingly taken in that this editorial is concerned with; rather, it deals with those who sell alcohol to minors knowing full well, or at least suspecting, that they are under 18. As just mentioned, every town has at least one such pub or bar and not only does every local teenager know which one it is but so, generally, do most of the population.
That the offence extends to persons other than the individual bar staff (or supermarket employees) who actually sell the alcohol is made clear by the reference, in section 146(6), to persons being charged with it by reason of “the act or default of some other person”.
Possibly less well known, under section 141 of the Act, knowingly selling alcohol to a person who is drunk is also an offence, as is allowing it to be sold to such a person. The Act does not define “drunk”, but, it is suggested, it does not need to: the normal English meaning of the word suffices. It seems very difficult to argue that persons engaging in the kind of “binge drinking” behaviour referred to by politicians, tabloids and TV documentaries are not drunk, at least by the time they buy their last few drinks of the evening, and certainly, it seems unlikely, to say the least, that any magistrate (like sale to minors, the offence is summary) would accept that, faced with the evidence in a case brought against the bar in question.
Of course, where a person under 18 is drunk and successfully buys another drink, the bar will commit both offences.
Such an analysis of the law is perhaps unusual for an editorial, but it is important in order to demonstrate that each of the acts committed by a pub or bar in connection with under-age drinking, “binge drinking” or both is a criminal offence and can be dealt with accordingly.
This means that any property derived from such offences is criminal property within the meaning of the Proceeds of Crime Act 2002. This journal has made the point many times before, but it is worth emphasising that the definition of criminal property under the Act is particularly wide ranging. In contrast to many jurisdictions, and indeed the international instruments, which focus on property derived from the more serious crimes, the UK applies its money laundering provisions to the proceeds of all criminal offences, without exception. It may, currently, be the practice of the Crown Prosecution Service only to bring a money laundering prosecution in relation to the proceeds of the more serious crimes, and indeed the police, before that, only to consider money laundering charges in such circumstances, but the law very clearly allows for a money laundering prosecution in relation to the proceeds of summary offences just as it does for indictable ones.
The impact of this cannot be over-stated. Neither of the Licensing Act offences discussed above carry a prison sentence. Sale of alcohol to a minor carries a maximum fine of level 5 on the standard scale, currently £5,000, although, where the offence is committed repeatedly, on the same premises, this rises to £20,000, an exception to the normal limit on the Magistrates’ Court’s powers of sentencing. In contrast, as regular readers of this journal will be well aware, a money laundering conviction carries with it, on indictment, up to 14 years’ imprisonment. In practice, however, it would likely be more convenient to deal with both the Licensing Act and the money laundering counts together in one trial before the Magistrates’ Court; in this case, the maximum penalties would be the statutory limits set on magistrates’ powers of sentencing: currently six months’ imprisonment (or a total of 12 months for two or more offences) and/or a fine of £5,000. It is submitted that, at least for the first few cases, this will be sufficient to send the necessary message, although one should also note the power of the Magistrates’ Court, following conviction, to refer a case to the Crown Court for sentence; where it does so, the full range of sentences will apply. The Crown Court will also have the power to impose a confiscation order in relation to the proceeds that the pub is judged to have made from the illegal sales: a further sharp deterrent.
But even more powerful than the actual sentence would, it is suggested, be the message that such a prosecution would send out. From time to time (although, in practice, quite rarely), a pub may have its licence withdrawn as a result of breaches of the Licensing Act. This raises a minor stir but everyone is aware that it can happen: many have suggested that it is the threat to a pub’s license, not the threat of a prosecution and a fairly moderate fine, that is the real deterrent. The headline across the country’s press, “Middleshire pub landlord convicted of money laundering”, would, however, cause a much greater shock.
Some might question, however whether such an approach in relation to breaches of the Licensing Act is appropriate. It is submitted that it is highly appropriate. First, the days when money laundering prosecutions were reserved for criminal organisations and drug dealers are long past: the law reports are now filled with cases under the Proceeds of Crime Act being brought in relation to more modest crimes. But more to the point, the illegal sale of alcohol to minors (and indeed drunk adults) is an economically motivated crime. Why do pubs and bars sell large amounts of alcohol to those to whom it is prohibited? Quite simply, because it increases their profits. One only needs to look in certain pubs to realise that teenagers make up a significant proportion of their clientele – in some cases, they appear to make up most of it! – while the purposes of “2 for 1” offers is clearly to sell more drinks. If a business, which is what a pub or bar is, engages in a criminal activity in order to boost its profits, it is reasonable that it should be dealt with accordingly. It is certainly more reasonable than a measure that penalises all, regardless of culpability.
As with many areas, the tools are there. The question that remains is: is the government prepared to give the support to the police and prosecution services to use them?