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The 2015 Act: some more thoughts

18 January 16

Licensing briefing: are the new provisions satisfactory in relation to supplying alcohol to children and young persons, and revocation for failing the “fit and proper person” test?

by Tom Johnston

The dust over the Air Weapons and Licensing (Scotland) Act 2015 has now settled and we now have to consider what we actually have. The time for gnashing and wailing over lost opportunities is behind us. What will we have to work with when it eventually comes into force?

Police Scotland, in a quiet and determined way, was keen to remedy what it saw as important flaws in the legislation. It wished to address the practical problems which officers face daily when children and young persons get their hands on alcohol. Its first success is an uncontroversial one, namely the correction of an obvious flaw in the fifth licensing objective. The objective of protecting children from harm will now be extended to include young persons.

I suspect Police Scotland will be less satisfied with the revised rules about supply of alcohol to young persons. It was felt that the existing rules contained in s 105 were insufficient, in that they applied only to a person of 18 or over who “buys or attempts to buy alcohol... on behalf of a child or young person”, or “for consumption on relevant [i.e. licensed] premises by a child or young person”. We now have new ss 104A and 104B, one relating to children, the other to young persons. There is a prohibition as before on buying or attempting to buy alcohol on behalf of, and also on giving or otherwise making alcohol available for a child or young person. It will also be an offence to buy alcohol for a young person. All well and good: however, it is not an offence to buy alcohol for (as opposed to on behalf of) a young person if it is for consumption other than in a public place. So taking money from a group of youngsters to buy a case of beer for them is illegal. But buying four cases for their house party and going out for the night is fine. The law relating to 16 or 17-year-olds having a beer with a meal if bought by an adult is unchanged: however, if I give that same 17-year-old a glass of beer at a family picnic I am committing an offence. I foresee some interesting debates in courts and before licensing boards.

Improper treatment?

The police were also very vocal in their support for the return of the “fit and proper person” test. At consultation there seemed to be no great opposition to it; after all, it was something which had been with us for a very long time. It has now been reintroduced as a ground for refusal of an application for a premises licence and as a ground for refusal of a transfer application. I was very pleased to see this test qualified to the extent that it must be applied having regard to the licensing objectives. This will ensure there will no repetition of a board attacking your licence because you are in arrears with your rates. It is also now an additional ground for review of both a premises and a personal licence. It is in this area that I have certain misgivings.

Section 39(2A) provides that where a board is satisfied that this ground for review is established, it must revoke the licence. Where other grounds for review of a premises licence are established, boards have a range of possible disposals, from no action to revocation. I foresee elaborate arguments to the effect that while the client has indeed done a bad thing, he or she has simply breached a licensing objective, but has not crossed the fit and proper line.

I am greatly concerned that at a busy board meeting there may be insufficient time for arguments of such subtlety. There are still in post many councillors who were board members under the 1976 Act, when a “not fit and proper” finding could lead simply to a one-month suspension. Will they get the importance of the change in emphasis?

The lot of the licensee in these circumstances will not be helped by the fact that any conviction they have ever had may be laid before the board regardless of its age. The simple two lines of s 52 remove from licensees the protection of the Rehabilitation of Offenders Act 1974. So far as I am aware, that protection will still apply to operators of taxi firms, scrap metal dealers and sex shop proprietors.

Many people in the licensed trade feel they are not fairly treated. When one has to try to explain legislation of that sort to them, it is difficult to argue. 

Tom Johnston, Ormidale Licensing Services

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