It is well known in England and Wales that, with certain exceptions, it is an offence for a minor (that, is, someone under 18 years of age) to purchase alcohol.
What is less likely to be known is that an adult who purchases alcohol on behalf of someone under 18 years also commits an offence. This is known as a proxy purchase.
Licensing Law is very detailed and this is exemplified by the fact that the Licensing Act 2003 runs to 203 sections and eight schedules and creates many offences. Anyone having an involvement with alcohol in whatever way (other than as an adult simply consuming it in moderate quantities) should familiarise themselves with the act and consider seeking legal advice. This post relates to one very small area of the law and which creates an offence of which a member of the public could easily fall foul.
Section 146 of the Licensing Act 2003 makes it an offence for a person to sell alcohol to someone aged under 18 years. There are various defences available to a person charged under this section but the safest course is to make sure that alcohol is not sold to someone under 18 rather than argue the toss in court.
Children very often persuade or attempt to persuade an adult to purchase it on their behalf. This person could be a parent, a sibling, another relative or a friend or indeed a stranger who is going into the shop (including a supermarket)
The law is wise to this and Section 149 (3) of the Licensing Act 2003 makes it an offence for a person to buy or attempt to buy (a proxy purchase) alcohol on behalf of a young person under the age of 18 years.
A person who commits this offence is liable to a fine of up to £5,000.00 if convicted.
The person who makes the sale also commits an offence although once again depending on the circumstances there may well be a defence to the charge.
When I applied for a university place to read law in the early ’70s and a few years later when I was applying for articles (now a training contract) one of the questions inevitably related to ‘outside interests’. For those of us who had had to apply ourselves diligently to our studies to the exclusion of specific interests the invariable, vague and unimpressive response was ‘reading and walking’. As long as one had read a few books and perhaps read a number by one author and as long as you had been walking in a few beauty spots then your answer was truthful albeit that one may look like a boring nerd (a word that had not then been invented).
In more recent years the demands of universities and employers have become more demanding with the advent of ‘personal statements’ and employers wanting more information about applicants and their experience and demanding higher qualifications in order to help in deciding whether you are worth employing.
The temptation to tell an odd white lie (or, indeed, to tell a great big whopper) or to gild the cv lily is now much more irresistible. This will be done either because ‘nobody will bother to check’ and it wont really matter if you are caught out.
The position now is that they will check and it will matter and that will be especially the case if you have gained your place or job in reliance on the lie.
What all those applying for jobs and places in higher education need to understand is that by lying you will be committing a criminal offence, namely fraud, and are likely to be prosecuted and potentially finishing up in prison and/or with a criminal conviction which is likely to affect your prospects for a long time.
An organisation called CIFAS exists which says in short that it is the UK’s Fraud Prevention Service. It says:
CIFAS provides the UK’s most comprehensive databases of confirmed fraud data, as well as an extensive range of fraud prevention services, using the latest technology to protect organisations from the effects of fraud.
It records details of people caught engaging in such lying behaviour and also to share such information with its members.
CIFAS has recently produced a booklet which makes sober reading and which all prospective applicants should read so that they are not tempted to lie. This is a link to that document.
I have recently offered some advice to a young person trying to obtain work within the law and in addition to general advice on getting such a job I have flagged up the existence of the CIFAS booklet because I detected a willingness perhaps to stretch the truth. Additionally (and I think it is worth making the point here) I reminded this person to be extremely careful what is put on social media about him. A picture of himself vomiting after a good night out is not likely to commend him to an employer. Similarly, the use of offensive language by himself on his Facebook page or in posts by his friends which appear on his page, is really not a good idea.
Nowadays, it does not need a great deal of knowledge of the internet for an employer to dig out those secrets which you would rather have forgotten.
- Until now solicitors have been required to have Professional Indemnity Insurance (the insurance which covers them and their clients in case a pig’s ear is made of a matter being dealt with by the solicitors [pig’s ear is a colloquial way of saying “professional negligence] ) in the minimum sum of £2,000,000 (Two million pounds).
- It was always open to the solicitors to insure themselves for a higher sum if they felt that they could have a liability of more than two million pounds in any transaction.
- If the actual liability sustained by the solicitors was more than the sum insured then the claimant would have to go after the solicitors personally.
- It has recently been announced by the Solicitors Regulation Authority that they are looking at reducing the compulsory sum insured to £500,000 (Five hundred thousand pounds) each year. (The implementation of this change is subject to the consent of the Legal Services Board.) Given the astronomic increase in house property prices of late it is easy to see how that sum may be insufficient. If the conveyancing transaction was of a commercial or industrial property and there was a major mistake made in the conveyancing, the sum of Five hundred thousand pounds would easily be completely inadequate if, for instance, a firm had to move out to other premises with the potential cost of that and the cost in lost production and damage to the goodwill of the business.
- In addition to conveyancing another example where solicitors could find themselves under insured is if they undertake personal injury claims for injuries in road accidents or injuries at work or, and especially, medical negligence where the sum claimed can easily be in the millions of pounds.
- Solicitors must make available to clients information about their compulsory layer of professional indemnity insurance (that is, from 1st November 2014, £500,000 if the changes are confirmed by the Legal Services Board). This must include the contact details of the solicitors’ insurer(s) and the territorial coverage of the insurance. Please note that the figure of £500,000.00 may well change in future years. If you do not get this information from your solicitors then you should ask for it in writing at the outset of the matter
- The decision about a change in the rules has not yet been finalised, but if it is to be changed in time for the forthcoming insurance year then this must be done in good time before the new insurance year begins on !st November
For further information see The Times blog
For information from the Solicitors Regulation Authority on this matter click here
The vacuuming up of this data is to start very shortly; no-one seems to know precisely when; early spring is the date being put about by government.
As of the 7th February 2014 some aspects of this operation had not been decided, in part because the two people in the NHS who have the information were on holiday.
One key worrying aspect of this is that information will be sucked up automatically from GP records unless a patient opts out. In other words, if you do nothing your data will be swept into the HSCIC database and will continue to be swept up at frequent intervals unless and until you refuse to allow it to continue. That which they already have will not be able to be deleted. Up to early this month it was understood that if you opt out none of your information would be retrieved by HSCIC. That however appears now not to be the case. Your clinical information will be sucked up but not any identifying matter.
If this concerns you then it is important that you act now and notify your GP that you do not want any data to be disclosed. The leaflet which you have received merely tells you to contact your GP if there is anything you don’t understand. However, effectively, all your GP can do is to tell you that you can opt out.
I have found an absolutely superb article on this malarkey and it can be found by following this link and from there you can click through to another website which has devised a form and/or a letter which can be filled in, printed off and sent to your GP. Follow this link to get to medconfidential the second website and the opt out forms.
I have opted out from the data.care program. I have used the Word opt-out letter found on the medconfidential website. I have addressed it to “The Practice Manager and doctors at (name and address of surgery)” and used the greeting “Dear Doctors”. My wife has completed her own form. If you have children or if you have responsibility for the medical affairs of someone else then you can add in the details of the children or other people to your form. However, that can only be done if the children or other person is at the same surgery as yourself. If not, then you will need to complete a separate form.
For completion of the form you will need the full name and address, date of birth, gender of the person concerned and their NHS number. This is NOT the person’s National Insurance Number. The NHS number may well be found on a prescription form, or in a letter confirming your joining a surgery or on a hospital letter etc. It is likely to be in 3 sections: 3 digits, then another three digits and then four digits. If you cannot find it then call in at the surgery to try to get the number if they will give it to you. Do not let not having the number deter you from completing and submitting the form.
Keep a copy of the completed form. If you are able to keep a copy by photocopying or scanning the original then do so.
Despite popular opinion it is rare for solicitors to be the recipients of good news but one of those rare events has taken place recently and a solicitor who made a mistake has avoided being clouted whether in the courts or via the Solicitors Regulation Authority.
A solicitor who practises in the area of wills and probate will prepare many hundreds of wills in the course of his or her professional lifetime and a large percentage of those wills will be what are known as ‘mirror’ wills.
Mirror wills are usually made by married couples or by registered civil partners (and, in the future, by married same sex couples) and who make almost identical wills leaving everything to each other or, if they both die together or on the death of the second to die, to the same other people and which will usually be to their children should they have any.
Effectively, the wills will be identical save for the names and descriptions of those making the wills.
The person making a will is properly called ‘the testator’.
As with any will the process by which it is made legally valid is, by virtue of section 9 of the Wills Act 1837 (as amended by the Administration of Justice Act 1982) as follows:,No will shall be valid unless— (a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b)it appears that the testator intended by his signature to give effect to the will; and (c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d)each witness either— (i)attests and signs the will; or (ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”.
The critical bits for the purpose of this post is that to be valid the will must be signed by the testator.
Most solicitors will have sent out to the clients drafts of the wills for the approval of the clients who will, more often than not, then come into the office to sign their respective wills. A couple will more often than not come into the office together to sign their mirror wills. It is at this point where a solicitor whose mind is elsewhere can get into bother and he finishes up with the couple executing (signing) each others wills. Unless the error is spotted when the wills are filed away or when signed copies are sent to the clients for future reference purposes the wills are likely to lie in the solicitor’s safe ticking like an unexploded bomb waiting for one of the the couple to die or, more likely, until they have both died, when it will explode in the face of the solicitor who has supervised the signature of each of the wills by the wrong person and therefore invalidating both wills since the wills have not complied with section 9 of the Wills Act 1837 (as amended). Depending on all the circumstances the solicitor is likely to be faced with a negligence action for damages by anyone who has lost out as a result of the error.
That was until a week or so ago when the case of Marley v Rawlings and Another (2014) arrived in the Supreme Court having worked its way up through the court system. In this case the solicitor who had prepared the wills for Mr and Mrs Rawlings presented Mr Rawlings will to Mrs Rawlings and vice versa and they signed each others wills nobody having noticed the error.
There was an attempt made to have the wills rectified (that is, corrected) by the courts on the basis that there had been a clerical error. The judge at first instance, Mrs Justice Proudman, concluded that the wills could not be rectified since this had not been a clerical error. An appeal to the Court of Appeal produced the same result. However, when the matter came before the Supreme Court four of the five justices found that the wills could be rectified and the whole of the operative part of Mr Rawlings will could be read as the whole of the operative part of Mrs Rawlings will and vice versa.
Lord Neuberger who gave the judgment said at paragraph 82 of the judgment and which judgment can be found by following this link:
“the term “clerical error” can, as a matter of ordinary language, quite properly encompass the error involved in this case. There was an error, and it can be fairly characterised as clerical, because it arose in connection with office work of a routine nature. Accordingly, given that the present type of case can, as a matter of ordinary language, be said to involve a clerical error, it seems to me to follow that it is susceptible to rectification.”
Although these wills were rectified, this was on the basis of the particular facts in the matter and for this reason whether rectification would be ordered in another similar matter cannot be guaranteed.
Doubtless the solicitors who had been responsible for the error breathed a sigh of relief that they were not facing a negligence action. However, I cannot imagine that somewhere along the line there would have been a sizeable amount in costs involved and which the solicitors or, more likely, their insurers would have had to pick up.
NB to see the Wills Act 1837 as originally enacted in 1837 follow this link
- Today (29th January 2014) it is reported that that at some time three men had been charged by the Metropolitan Police (MPS) under the Vagrancy Act 1824 (the Act) (which is described as an Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in England) with stealing waste food (which according to the BBC comprised tomatoes, mushrooms, cheese and Mr Kipling cakes) from bins behind a branch of Iceland but that now the Crown Prosecution Service (CPS) had dropped the charges on the grounds that they were not in the public interest. Solicitors for the three men said that the offence was of ‘being in an enclosed space for an unlawful purpose’.
- The men’s defence would have been that the men were not acting dishonestly.
- Iceland, ( including its founder and Chief Executive) were said to be pleased with the withdrawal of these charges; they knew nothing about the incident or the charges until the press revealed the matter yesterday. It appears that the police were called to the store by a member of the public who saw some or all of the men climbing over a wall or fence of the premises. A police station was next door to the store concerned.
- For the Vagrancy Act as originally enacted follow this link.
- For the Vagrancy Act as very substantially amended follow this link For an article from the Guardian click here For a comprehensive article in the Irish Independent click here
- This case reminds me of one of the few criminal cases in which I was involved.
- The circumstance were that in the 1970s a demolition firm were in course of clearing out a factory building that had been seriously damaged by fire. They had heavy duty plant at the site. One of the machines broke down and an engineer (the engineer) was called to the site to which he had not been before. After finishing the job the engineer noted that in a skip were some toys which were only superficially damaged. He asked one of the other men on site what was going to happen to the toys and he was told they were going to be dumped at a tip. That being the case he took some of the toys and put them in his van and took them home. Had he given them to his children all would have been well. Unfortunately, he sold them to a local shop. A senior member of staff of the firm involved in the fire saw them in the shop window and the police were called and he was charged with theft under Section 1(1) of the Theft Act 1968 which says: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.” He appeared in the Crown Court before a circuit judge and a jury.
- The engineer had certainly taken the toys and he certainly intended to permanently deprive the owner of them. However, where the prosecution case fell down was that the driver had not acted dishonestly. He believed that he was entitled to take the toys. He had found out that they were going to be dumped and he assumed, on the basis of what he had been told by the other staff on site, that no-one would object to his taking them. The judge gave the jury clear instructions on the meaning of the words making up the definition of theft and the engineer was acquitted.
- In the Iceland case it appears from the BBC version of events that the men in this case claimed not to have acted dishonestly in the sense that the food was being thrown away and nobody would have objected if they took it.
- The moral of this story is that simply because someone has thrown something away does not mean that it is yours to take. You may well be able to prove that you were not acting dishonestly but do you want the stress and expense of fighting a charge of theft?
Having worked for an extremely honest firm for six years I moved on in the summer to a firm with a sole principal.
I had reason to query on my second day as to why VAT did not appear on an outgoing bill. I was told that “we don’t bother about VAT here”.
Loud bells started ringing.
On the third day I needed information from ‘the ledger’ in order to prepare a statement for a client only to discover that the books hadn’t been written up for the best part of two months.
The bells rang louder.
I put out the word in the profession that I was looking for a new job.
At the end of the week it was pay day. I asked the principal when I was getting paid whereupon he ferreted in his pocket and pulled out a wad of wonga and peeled off notes to the value of £100.00 and handed them to me. I asked for my pay slip and what was the position in respect of Income tax and National Insurance. You’ve guessed it: “we don’t bother with those sorts of things here”. I realised that he was getting me to be self-employed notwithstanding that I had made it clear from the outset that I did not wish to be self employed.
By this time I’d had a word in appropriate ears.
There was so little to do I used to spend lunchtimes playing around with the telephone system. I saw the occasional client and rang round employment agencies.
I started with a new firm, who I had known from my time in Little Whinging”, nine weeks later.
Some years later the principal appeared before the disciplinary body and was either suspended for a period of time or struck off.
Probably some 10 to 15 years later this slime ball came into my office and wanted to swear an affidavit in front of me. I recognized him but he appeared not to recognise me. As he was going out I referred to him by name. I don’t know whether the penny dropped.
Time is running out for those employers who still do not pay the minimum wage to their employees.
At present, employers face just one maximum fine of £5,000 plus a financial penalty of 50% of the missing wages for however many employees are affected.
It is reported in The Guardian today, 15th January 2014, that Vince Cable, the employment secretary, intends to increase the maximum fine to £20,000 plus a financial penalty of 100% of the wages underpaid.
It had been understood that the maximum fine of £20,000 would, as the case is now, be one fine for however many employees were being underpaid. It has come as a surprise to learn that the government intends that the fine should be for each employee underpaid.
The change of imposing a fine for each employee underpaid will require primary legislation, that is, the provision will have to be included in an Act of Parliament and it is reported that the proposal will be included in the next Queen’s Speech.
In principal we should be hearing squeals from any recalcitrant employers. However, penalties of the level proposed would be expected to put out of business those small outfits likely to pay under the minimum wage such as small shops, takeaways etc and are likely to have limited effect on major employers (as long as they haven’t got too many underpaid staff). I would suggest that it will be the middle range of businesses who can but refuse to comply with the law who will be most affected and want to comply in order to avoid the new penalties and also to avoid the naming and shaming tactic which the government plans to use to supplement the risk of financial penalties.