Failure to comprehend the law could land operators in trouble
IMAGINE a criminal trial where it seemed no one in the court knew the law – or at least the critical aspect that would determine the accused’s guilt or innocence.
That’s the startling state of affairs disclosed in a recent judgment handed down by the criminal appeal court in Edinburgh.
The background was straightforward. A 16 year old shop assistant failed to obtain approval from her boss and sold cider to a test purchaser of around the same age. The justice proceeded to convict the shopkeeper on two counts: (1) “allowing” the sale of alcohol to a person under 18 and (2) “allowing” the sale to take place without authorisation by a person over 18.
However, when the conviction was challenged it appeared that the justice had been caught out by a change in the law.
Licensing law has now become a dog’s dinner.
On December 13, 2010 the concept of “vicarious liability” – a pillar of the Licensing (Scotland) Act 1976 – made a comeback. As a result, it became possible for premises licence holders and other “responsible persons” to be convicted of an offence even where they had no actual knowledge of the breach. But at the same time a defence was made available: the exercise of “all due diligence” to prevent the commission of the offence entitles an accused to an acquittal.
The appeal court’s decision quashing the shopkeeper’s conviction indicates that he had taken the familiar measures that would normally make out the “due diligence” defence (staff training, till prompts for age-restricted products, and so on).
It wasn’t to the point that, in the view of the justice, “a more robust practice should have been in place” – because the judges found that the potential defence “appears not to have been specifically drawn to the justice’s attention”.
So, what went wrong?
The accused hadn’t hired a lawyer and it seemed that neither the prosecutor nor the justice’s legal assessor had drawn attention to the relevant section in the Act.
But the court also extended sympathy to the justice because of “the complexity of the legislation and its amendments”.
I’d go a stage further.
The truth is that licensing law has now become a dog’s dinner.
The Licensing (Scotland) Act 2005 was followed by a tsunami of regulations making significant additions to its substance. For example, there are more than two dozen references in the Act to “relevant offences” – yet, you won’t find a list of these offences in the Act itself. Instead, you have to turn to Scottish statutory instrument 2007/513 and be aware that this was amended by UK statutory instrument 2008/1277.
Then, major changes were made by the Criminal Justice and Licensing (Scotland) Act 2010 (including the re-introduction of vicarious liability) but not all of the amendments have been brought into force (for example, the power of licensing standards officers to “seize and remove substances, articles or documents” found on licensed premises).
There followed the Alcohol etc. (Scotland) Act 2010 introducing “Challenge 25” together with further controls on promotions but with other provisions – for example, the “social responsibility levy” – remaining dormant for the time being.
And, of course, with the Air Weapons and Licensing Bill starting to work its way through the Parliament, more reform is on the horizon.
In its Bill submission to the Local Government and Regeneration Committee, Highland Licensing Board expressed the same concerns: “It is difficult enough for solicitors to find out the law; it is even more so for ‘lay’ persons and those involved on the trade side.”
The solution, as proposed by the board and others, is a “consolidated Act”: in other words, one which fits the whole jigsaw together.
While large operators inevitably retain specialist legal advisers, cash-strapped small businesses will struggle to keep up to date.
It’s bad enough that a failure to comprehend the law might lead to the unwitting commission of an offence. But it’s a positive disgrace that “the complexity of the law and its amendments” highlighted in the recent appeal threatens to contribute to unwarranted convictions.