Commentary on Sections Section 2: Duty to prevent sunbed use by children
15.Section 2 requires a person who carries on a sunbed business (P) to ensure that no person aged under 18 uses, or is offered the use of, one of the business’s sunbeds on the business premises, except where those premises are used wholly or mainly as a person’s home (subsection (1)(a) and (b)). P must also ensure that no person aged under 18 accesses a “restricted zone” (see the definition of that term in subsections (4) and (5)), unless the person is providing services to P for the purposes of the business. If P breaches the duty in subsection (1), P commits a criminal offence (see subsection (3)).
16.A “restricted zone” is defined in subsections (4) and (5). If the business keeps its sunbed in a wholly or partly enclosed space (such as a private room, or a changing cubicle, or a booth or pod) that it reserves for people who use the sunbed, every part of that reserved space is a restricted zone. So, for example, if a sunbed in a beauty salon is kept in a private room reserved for sunbed users, and the sunbed itself is in turn contained in a booth, then the whole of the private room and the booth inside it would be a restricted zone.
17.If the business keeps its sunbed in a room which is not reserved for people who use the sunbed and the sunbed is not enclosed in any way in a reserved area, the whole of that room would be a restricted zone.
18.A person aged under 18 is allowed to be present in a restricted zone where the person is there for the purposes of providing a service to P which relates to the sunbed business. So, for example, P would not commit an offence under subsection (1)(c) if a person aged under 18 entered a restricted zone in order to clean or repair the sunbed, or to put fresh towels out, or paint the room in which the sunbed is kept. Any such service could be provided by one of P’s employees, but they could also be provided by a self-employed person contracted to work for P, or a member of staff from an agency or a person gaining unpaid work experience with the business.
19.By imposing criminal liability on the person carrying on the business if a person aged under 18 is present in a restricted zone, the section enables a prosecution to be brought in a case where a person aged under 18 enters the zone with an adult, but it is not possible to show which person actually used the sunbed. For example, if Emma (aged 19) and her friend Elizabeth (aged 17) both enter a private cubicle containing a sunbed, it would be difficult to know which of them used the sunbed.
20.By making it an offence for an offer of use to be made to a person aged under 18, prosecutions are able to be brought even where the person aged under 18 did not go on to use the sunbed because, for example, the sunbed failed to work or the person changed their mind.
21.If the person carrying on a sunbed business (P) fails to comply with the requirements in subsection (1), P commits a criminal offence punishable on summary conviction by a fine of up to £20,000 (subsection (6)). The offence is a strict liability offence, which means that P commits the offence if a person aged under 18 uses, or is offered the use of, one of the business’s sunbeds, or if a person aged under 18 enters a restricted zone (except where the person is in the restricted zone for the purposes of providing services to P for the purpose of the sunbed business). It does not matter whether P intended this to happen. However, the strictness of this approach is tempered by the availability of a ‘due diligence defence’ (subsection (7)). If P can demonstrate that P took all reasonable steps and exercised all due diligence in trying not to commit the offence then P has a defence to the offence. So, for example, P may show that the sunbed business has a strict policy requiring proof of a person’s age before allowing the person to use a sunbed and that the policy was properly implemented but was circumvented by a high quality fake ‘proof of age’ document which would fool a reasonable person. Or P might show that the use which was the subject of the offence occurred at night when the properly-secured business premises were subject to a break-in.