Conditions can be a criminal affair | Scottish Licensed Trade News

Scottish Licensed Trade News

Conditions can be a criminal affair

Legislation leaves operators at greater risk of prosecution

• The 2005 Act contains a range of offences that can bring police calling.

• The 2005 Act contains a range of offences that can bring police calling.

By Jack Cummins

ACCORDING to a report in a daily newspaper, a Glasgow barman will stand trial in the sheriff court next month accused of serving two police officers a pint each… but only one roll and sausage between them.

It seems that the barman –who denies the charge – allegedly breached a condition attached to a so-called ‘breakfast licence’ requiring alcohol only to be sold along with a ‘cooked breakfast’.
With the legal process ongoing, it wouldn’t be appropriate to comment further on that case. But it does illustrate the potential for licence conditions to land premises licence holders, their staff and personal licence holders in court, leading to a criminal conviction and with a licence review in the wings.

A raft of offences places an impossible burden on the trade.

Under the Licensing(Scotland) Act 1976, licence holders were liable to land in hot water for selling alcohol outwith permitted hours or selling to persons under the age of 18, but otherwise they were far less exposed to prosecution.
The Licensing (Scotland) Act 2005 is an entirely different beast.
Section 1 makes it an offence to sell alcohol on any premises “except under and in accordance with a premises licence or an occasional licence” (leaving aside exceptions for so-called “exempt premises”).
This is serious stuff: a conviction attracts a maximum penalty of a £20,000 fine and/or six months in jail.
At first blush, this looks like the offence of “trafficking”, to use the old-fashioned term – that is to say, selling alcohol without a licence – but its scope is much wider. Alcohol is not sold “in accordance with” a licence if there’s a failure to adhere to the licence conditions, of which there’s no shortage.
In fact, every premises licence comes with 16 mandatory conditions, creating the potential for over two dozen offences.
Here are just a few examples:
• Failing to make non-alcoholic drinks available in a pub for “purchase at a reasonable price”.
• Placing a poster promoting alcohol in a shop window, unless the window is situated in an approved alcohol display area.
• Allowing a delivery van to be parked within 200 metres of a shop if the van carries signage promoting alcohol for sale in the shop.
There’s a built-in ‘one strike’ provision in the Act when it comes to licence conditions.
Where a licensing standards officer believes there has been a breach, a ‘section 14 notice’ can be issued requiring the licence holder to put the matter right.

Under the 1976 Act licensees were less exposed to prosecution.

A failure to comply with the notice is likely to lead to the officer calling a premises licence review.
But if the breach is detected by a police officer there’s nothing to prevent the matter going straight to court.
There’s also a huge raft of what might be called “administrative offences”, which in my view place an impossible burden on the trade when it comes to keeping up to date.
How, for example, is a club to know that from December 13, 2010 it became obliged to notify the licensing board when a person becomes, or ceases to be, a club office bearer?
An offence is committed if the notice of the change isn’t given no later than one month after its occurrence.
A conviction for the offence also requires to be notified to the board and will lead to a mandatory review of the premises licence – and a failure to notify the conviction is also an offence with the same consequence.
It’s right and proper that those who have the privilege of selling alcohol are properly regulated, but I can’t think of any other business sector that requires to operate under a system leaving owners and staff exposed to the risk of acquiring a criminal record where common sense and fairness dictate a much more proportionate response.

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Jack Cummins is unable to enter into personal correspondence on readers’ questions.
The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained on this page or elsewhere in SLTN can be accepted by the author or publisher.

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