Jersey Unreported Judgments

2001/62

2 pages

Licensing Assembly

16^th December, 1999

[Sent for inclusion in Jersey Unreported Judgments: 16^th March, 2001].

Before:  Sir Philip Bailhache, Bailiff, and Jurats

                                            Myles, de Veulle, Le Ruez, Rumfitt, Quérée, Tibbo, Le Breton, Georgelin and Allo.

Licensing (Jersey) Law, 1974

Report of the Attorney General regarding

Take Away Business and the Provision of "Free" Alcohol.

The Report of the Attorney General.

1.         Introduction

1.1       At the last Licensing Assembly on 23^rd September, 1999, the Assembly was informed by an applicant for a 6^th category licence that there were a number of take away businesses offering free bottles of wine with home deliveries.

1.2       As a result, the Bailiff requested that the Attorney General investigate the allegations.

1.3       In pursuance of that directive, the Attorney General caused an investigation to be carried out by the States of Jersey Police.

2.         The Police Report

2.1       The Attorney General has since received a report from the police detailing their findings.  The practice of providing free alcohol with purchased take away meals does not appear from that report to be widespread in Jersey.  However, it would appear that at least one establishment has been running one of these promotions for some considerable time and that these promotions have been advertised in the Jersey Evening Post.

2.2       The establishment named in the advertisements has since stopped this practice, pending the decision of the Assembly.

3.         The Law

3.1       Pursuant to Article 79(1) of the Licensing (Jersey) Law, 1974, it is an offence for any person, not being the holder of a licence, to sell any intoxicating liquor.

3.2       The issue, therefore, is whether or not the practice of offering "free" alcohol with take away orders above a specified amount constitutes a "sale" and, therefore, a breach of the Licensing Law.

3.3       A helpful summary of the English position appears at page 475 of Paterson's Licensing Acts 1991 (99^th Ed'n) and reads as follows:

"There may, it seems clear, be a "sale" of an article although no price is specifically charged for it, e.g. where it is included in the price of something else."

3.4       This conclusion is based on several English cases, namely, Taylor -v- Smetten (1883) 11 QBD 207; Scott -v- Solomon (1905) 1 KB 577; Doak -v- Bedford (1964) 1 All ER 311; and Horgan -v- Driscoll (1908) 42 ILT 238.

3.5       In the light of the above, it would appear that, although no specific charge is made for it, the alcohol is deemed to form part of the transaction as a whole and, therefore, part of the sale.  Accordingly, the promotions in question would appear to be in breach of the Licensing Law.

The Remarks of the Bailiff

THE BAILIFF:

I would just say, Madam Solicitor, that the Assembly is grateful for that report from the Attorney General.  It seems to us that there is nothing that we can usefully add to it, and it is very helpful to have the law clarified for the benefit of people who might otherwise think that they could sell alcohol together with other items or food.