Licensing (Scotland) Act 2005 section 142: guidance for Licensing Boards

10. Personal Licenses

Introduction

10.1 This Chapter provides information on personal licences. Part 6 of the 2005 Act sets out the legislative framework which applies to personal licences.

10.2 Any person aged 18 years or over may apply for a personal licence provided they possess a relevant training qualification and have not been convicted of any relevant offence or forfeited a licence in the past 5 years. The Air Weapons and Licensing (Scotland) Act 2015 amended the 2005 Act to provide for an exception to the aforementioned 5 year period. If a personal licence is revoked for failure to comply with the training requirement (see below), the licence holder will not have to wait 5 years to reapply for a personal licence.

10.3 Application forms and associated guidance notes can be downloaded from Licensing Boards' website pages. A personal licence allows the individual to train staff, apply for occasional licences and to authorise or supervise the sale of alcohol. Once granted a personal licence will have effect for a period of 10 years unless it is surrendered or revoked by the Licensing Board.

10.4 Section 9 of the 2005 Act requires a Licensing Board to keep a public register containing information relating to licences issued by the Licensing Board and decisions taken by it. The Licensing Register (Scotland) Regulations 2007 (SSI 2007/33) make specific provision as to the personal licence information that should be entered in the public register.

10.5 An individual may hold only one personal licence at a time. Licensing Boards may not issue a personal licence to any person who already holds such a licence and any subsequent personal licence issued would be void. The 2005 Act does however allow for an existing personal licence holder to apply for the renewal of their licence and so no person should apply for a new personal licence on the basis that their current licence is reaching the ten year point.

10.6 The Licensing (Fees) (Scotland) Regulations 2007 (SSI 2007/553) as amended provide that the fee payable in respect of a personal licence application and a personal licence renewal application is £50. Licensing Boards can determine the fee charged for a replacement personal licence subject to the general rule that fees should be set at a level which allows the Licensing Board to recover their costs.

10.7 Personal licences granted in England and Wales are not transferrable to Scotland and vice versa as the licensing and legal systems are different. Within Scotland, a personal licence granted by one Licensing Board may be used within another Licensing Board's local authority area.

Premises Manager

10.8 Each premises must have a "premises manager" who is named on the premises licence as the person responsible for running that premises. In terms of the mandatory premises licence condition set out at Schedule 3 of the 2005 Act, a premises manager is required to hold a personal licence (see Chapter 8 for more information on premises licences).

Grant and Renewal

Notification

10.9 Prior to considering a personal licence application, Licensing Boards are required by the 2005 Act to notify and provide a copy of the application to the chief constable and (following an amendment to the 2005 Act by the Air Weapons and Licensing (Scotland) Act 2015) to the Licensing Standards Officer for their locality.

10.10 This is an important information gathering process for Licensing Boards as the chief constable is required to confirm to the Licensing Board, within 21 days of the date of receipt of the notification, whether or not the applicant has been convicted of a relevant offence or foreign offence.

10.11 Section 129 of the 2005 Act states that for the purposes of the Act, a "foreign offence" means any offence: under the law of any place other than Scotland; and which is similar in nature to any relevant offence. Section 129 also provides the Scottish Ministers with a power to prescribe by regulations what offences are to count as a "relevant offence" in the 2005 Act. The Licensing (Relevant Offences) (Scotland) Regulations 2007 (SSI 2007/513) specify those offences which are to be relevant offences for the purposes of the 2005 Act (regulation 2 and the Schedule).

10.12 Additionally the chief constable has the opportunity to recommend to the Licensing Board that the personal licence application should be refused on grounds relating to the 5 licensing objectives (inserted by the Criminal Justice and Licensing (Scotland) Act 2010) and/or to provide any further information to the Licensing Board that the chief constable considers relevant to their consideration of the application (inserted by the Air Weapons and Licensing (Scotland) Act 2015).

10.13 The notification process also provides the Licensing Standards Officer, with an opportunity to pass within 21 days any information in relation to the applicant that s/he considers would be relevant to the Licensing Board's consideration of the application. For example, this could include reference to previous conduct by the applicant that was inconsistent with the 5 licensing objectives.

Determination of personal licence application

10.14 Section 74 sets out the procedure that Licensing Boards must undertake when considering personal licence applications. Licensing Boards can delegate the determination of a personal licence application to: any member of the Board; any committee established by the Board; the clerk of the Board or a member of support staff unless the applicant has been convicted of a relevant or foreign offence.

10.15 A number of amendments have been made to section 74 since the 2005 Act was implemented. The key changes have been made by the Air Weapons and Licensing (Scotland) Act 2015. The changes made - along with the changes mentioned above – are linked to the re-introduction of a "fit and proper" test into the alcohol licensing regime.

10.16 The introduction of this test allows greater scope to present information to Licensing Boards which in turn will aid them when making decisions about applicants, licence holders and connected persons. It also provides Licensing Boards with greater powers to tackle crime, particularly serious organised crime, by allowing the consideration of a wider range of information including police intelligence and any associations with those deemed to be unsuitable.

10.17 In essence if the conditions set out at section 74(2) and section 74(3) are all met, in relation to the applicant, then a Licensing Board must grant the application. If any of these conditions are not met, in relation to the applicant, then the Licensing Board must refuse the application.

10.18 Provision is also made within section 74 for a Licensing Board to hold a hearing to determine whether or not a licence application will be granted. Whether or not a hearing will be held is generally dependent on the conditions at sections 74(2) and (3) being met and the content of the notice(s) above) submitted to the Licensing Board by the chief constable and/or the Licensing Standards Officer.

10.19 A Licensing Board must hold a hearing to determine a personal licence application where the conditions in 74(2) and (3) have all been met but the chief constable's notice contains a recommendation that s/he considers that it is necessary for the purposes of any of the licensing objectives that the personal licence application be refused.

10.20 There are two situations set out in section 74 where a Licensing Board may hold a hearing to determine a personal licence application provided all the conditions set out in sections 74(2) and (3) are met. These are:

• a notice from the chief constable specifying any convictions of the applicant for a relevant or foreign offence but the notice does not contain a recommendation that for the purposes of the licensing objectives the application should be refused; or
• a notice from the chief constable does not contain a recommendation that for the purposes of the licensing objectives the application should be refused but either the chief constable and/or the Licensing Standards Officer provides information that they consider may be relevant to consideration by the Licensing Board of the application.

10.21 Where a hearing is held, then the Licensing Board must have regard to the notices and information submitted by the chief constable and/or the Licencing Standards Officer when considering and determining a personal licence application. If the Licensing Board is satisfied that a ground for refusal applies, it should refuse the application, or if not so satisfied, grant the application.

The grounds for refusal are -

• that having regard to the licensing objectives, the applicant is not a fit and proper person to be the holder of a personal licence,
• that it is otherwise necessary to refuse the application for any of the purposes of the licensing objectives.

10.22 There is a further occasion provided by section 74 when a Licensing Board may hold a hearing to consider and determine a personal licence application. This relates to an amendment to the 2005 Act made by the Criminal Justice and Licensing (Scotland) Act 2010. The amendment enables a Licensing Board to refuse the application or hold a hearing to decide whether or not to grant the application, if the applicant already holds a personal licence or if a previous personal licence held by the applicant had been surrendered or expired in the previous three years before a new application was made.

10.23 If a hearing is held, the Licensing Board can grant or refuse the personal licence application. In reaching a view, the Licensing Board are required to have regard to the circumstances in which the personal licence previously held expired, or was surrendered.

10.24 An applicant whose application for a personal licence has been refused has a right of appeal to the Sheriff.

Issue of a personal licence and changes made to a personal licence

10.25 Where a Licensing Board grants a personal licence application, it must issue a personal licence to the applicant in the prescribed form. The Personal Licence (Scotland) Regulations 2007 (SSI/2007/77) sets out the form and content of the personal licence.

10.26 When issuing personal licences, Licensing Boards may use the unique local authority identifiers as a prefix to the Licence number they issue for each personal licence. In cases where a local authority area covers a number of licensing divisions (each with its own Licensing Board), it would be good practice to adopt unique referencing numbering for each licensing division to identify the Licensing Board area for which licences are issued.

10.27 Where certain changes have been made to the terms or effect of a personal licence, (for example, where it has been renewed, suspended or a change of details has been notified), the Licensing Board must make the necessary amendments to the licence. The Licensing Board may require the personal licence holder to present the licence for amendment within 14 days. Failure by the licence holder to comply with this obligation, without reasonable excuse, is an offence. A person guilty of such an offence) is liable on summary conviction to a fine not exceeding level 2 on the standard scale (£500).

Renewal of personal licence

10.28 Personal licences are generally valid for ten years with the possibility of renewals for further ten year periods. Licensing Boards must notify personal licence holders, of licences granted by them, not later than 9 months before the licence expiry date that the licence will cease to have effect unless renewed.

10.29 Section 78 sets out the steps an individual must take to apply for the renewal of a personal licence. Applications for renewal require to be made to the Licensing Board which originally granted the licence. Applications for renewal can only be lodged with the relevant Licensing Board within a two-month period beginning three months before the personal licence's expiry.

10.30 A Licensing Board requires to process a personal licence renewal application in broadly the same manner as it is requires to process a personal licence – i.e. akin to the process outlined in the Determination of personal licence application section above.

Notification of Licensing Board determinations

10.31 Once a Licensing Board has granted or refused a personal licence or personal licence renewal application then it is required to notify both the applicant and the chief constable. Either of these parties can contact the Clerk to the Licensing Board and ask the Board to give a statement of reasons for the grant or refusal of the application. The Licensing Board must issue such a statement to both parties.

Replacement of a personal licence

10.32 Section 92 provides for the situation where a Licensing Board receives an application for a replacement personal licence from an individual they issued a personal licence to. If the Licensing Board is satisfied that the original personal licence has been lost, stolen, damaged or destroyed and the applicant has reported the loss or theft to the Police then the Licensing Board must issue a replacement personal licence. A replacement personal licence is a copy of the personal licence held by the applicant in the form it existed immediately prior to the loss and is has been certified by the Licensing Board to be a true copy.

Duties placed on personal licence applicants/holders

10.33 Part 6 places a number of duties on personal licence applicants/holders.

Licensing Qualification

• Section 74 lists certain conditions that must be met before a Licensing Board can consider a personal licence application. One of these conditions is that an applicant must have a licensing qualification.

Notification of offences

• Section 75 places a duty on a personal licence applicant to notify the Licensing Board, of any relevant or foreign offence that the applicant has been convicted of in the period between making their application and it being determined by the Licensing Board. The notification must take place no later than one month after the date of the conviction.
• An individual who:
  • without reasonable excuse, fails to notify the Licensing Board commits an offence. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£2,000).

Surrender of void personal licence

• Section 76 makes provision for the issuing of a personal licence to an applicant by the Licensing Board. This section provides that a person who holds a void personal licence must surrender it to the Licensing Board. A personal licence is void if, at the time it is issued by the Licensing Board to an individual, that individual already holds a personal licence.
• An individual who:
  • without reasonable excuse, fails to surrender a void licence to the Licensing Board; or
  • passes off a void personal licence as a valid personal licence knowing that the licence is void commits an offence. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£2,000).

Duty to notify court of personal licence

• Section 80 provides that if a personal licence holder is charged with a relevant offence the person must notify the court of the existence of the licence and produce the licence to the court.
• An individual who:
  • without reasonable excuse, fails to comply with these requirements commits an offence. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 2 on the standard scale (£500).

Duty to notify Licensing Board of convictions

• Section 82 provides that if a personal licence holder is convicted of a relevant offence or foreign offence, s/he must, within one month, notify the Licensing Board which issued the licence and, if different, the Board for the area in which the licence holder is working, of the conviction. Details are given of the form the notice should take and what actions a Licensing Board should take if they are aware that the personal licence holder is working in licenced premises in another Board area.
• A licence holder who:
  • without reasonable excuse, fails to comply with these requirements commits an offence. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 4 on the standard scale (£2,500).

Licence holder's duty to undertake training

• Section 87 makes it mandatory for all personal licence holders to undertake prescribed training every five years and to provide the relevant Licensing Board with evidence that they have undertaken this training (see paragraph 10.31 below). Failure to undertake the necessary training will result in a personal licence being revoked.

Updating of personal licence

• Section 88 requires a licence holder to notify the relevant Licensing Board of any change of name or address within one month and s/he must enclose the personal licence (or a statement of reasons for failure to produce the licence) with such notice.
• A licence holder who:
  • without reasonable excuse, fails to comply with these requirements commits an offence. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 2 on the standard scale (£500).

Surrender of void replacement personal licence

• Section 92 requires that a person who holds a void replacement licence must surrender it to the Licensing Board. A replacement licence is void, if when issued, the personal licence it in respect of which it was issued is not lost, stolen, damaged or destroyed.
• A person who
  • without reasonable excuse, fails to comply with these requirements; or
  • passes off a void replacement personal licence as a valid licence, knowing that the licence is void

commits an offence. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£2,000).

Duty to produce licence

• Section 93 applies where the personal licence holder is working on licensed premises. A constable or Licensing Standards Officer may require the holder to produce his or her personal licence.
• A licence holder who:
  • without reasonable excuse, fails to comply with these requirements commits an offence. An individual guilty of such an offence is liable on summary conviction to a fine not exceeding level 2 on the standard scale (£500).

Training qualifications – personal licence holder

10.34 Alcohol licensing qualifications support those working in the licensed trade in Scotland. They allow individuals to show that they can work responsibly and that they understand how the licensing process applies to their jobs.

10.35 As discussed above, certain conditions must be met before a Licensing Board can determine a personal licence application. One of these conditions is that the applicant hold a licensing qualification, that is accredited by the Scottish Ministers. Further information can be found in the updated 'Licensing (Scotland) Act 2005: liquor personal licence holder training accreditation' document, published by the Scottish Government in December 2022.

10.36 Under the 2005 Act, all personal licence holders must complete "refresher" training within five years of the date that their licence was issued (and each subsequent five years thereafter) and provide evidence of having done so to the Licensing Board which issued the personal licence no later than 3 months after the expiry of the five year period. Should a personal licence holder fail to undertake the necessary training they will have their personal licence revoked.

10.37 A duty is also placed on Licensing Boards to notify, within the required timescale, holders of personal licences granted by them of the refresher training requirements. Please see the updated 'Licensing (Scotland) Act 2005: liquor personal licence holder training accreditation' document, published by the Scottish Government in December 2022.

Court's duty to notify Licensing Board of Convictions

10.38 Section 81 provides that where an individual is convicted of a relevant offence, the clerk to the Court must notify the relevant Licensing Board of the conviction as soon as is reasonably practical after the conviction. This is subject to the clerk being aware the individual concerned holds a personal licence.

Licensing Board receives conviction notification

10.39 Section 83 sets out the procedure to be followed by a Licensing Board when a personal licence holder has been convicted of a relevant of foreign offence. The procedure involves notifying the chief constable who is required to respond within 21 days. Depending on the content of the notice sent by the chief constable, a Licensing Board may:

• take no further action in relation to the conviction;
• hold a hearing where the chief constable and licence holder are given an opportunity to be heard;
• if satisfied it is necessary for the purposes of any of the licensing objectives the Licensing Board can make an order to revoke, suspend, endorse the a personal licence;
• where at the hearing the Licensing Board is satisfied that having regard to the licensing objectives, the licence holder is not a fit and proper person to be a holder of a personal licence then the Licensing Board must revoke the personal licence.
• When an order is made, the Licensing Board must notify the licence holder concerned, the chief constable; and if different, the Licensing Board which issued the personal licence. The licence holder has a right of appeal to a Sheriff against orders made under section 83(9) or (9A).

Conduct inconsistent with licensing objectives

Power of chief constable to report such conduct to the Licensing Board

Power of Licensing Standards Officer to report such conduct to the licensing Board

10.40 Section 84 sets out the procedure that a Licensing Board must follow in the course of reviewing a premises licence under section 33 of the 2005 Act. If the Licensing Board finds a personal licence holder was acting on the premises in question in a manner that was not consistent with the licensing objectives then:

• a hearing must be heard by the relevant Licensing Board;
• the licence holder and any other persons the Licensing Board consider are appropriate are given an opportunity to be heard;
• if satisfied it is necessary for the purposes of any of the licensing objectives the Licensing Board can make an order to revoke, suspend, endorse the a personal licence;
• where at the hearing the Licensing Board is satisfied that having regard to the licensing objectives, the licence holder is not a fit and proper person to be a holder of a personal licence then the Licensing Board must revoke the personal licence;
• When an order is made, the Licensing Board must notify the parties listed at section 84(8). The licence holder has a right of appeal to a Sheriff against orders made under section 84(7) or (7A).

10.41 Section 84A enables the chief constable to report a personal licence holder to the Licensing Board for actions which are inconsistent with any of the licensing objectives. Where this is done the Licensing Board must then hold a hearing to consider what action if any should be taken against the personal licence holder.

10.42 Section 84B provides Licensing Standards Officers with a specific power to report conduct of a personal licence holder, who is or was working in licensed premises in their area, which is inconsistent with the licensing objectives, to the relevant Licensing Board. Where the Licensing Board receives such a report it may hold a hearing but is under no obligation to do so. If a Licensing Board elects to hold a hearing, to consider what action if any should be taken against the personal licence holder, the process followed will be similar to that set out at paragraph 10.40.

Endorsements

10.43 Section 85 provides for the expiry of endorsements of a personal licence after 5 years. An endorsement for the purposes of this section is an endorsement of a personal licence by a Licensing Board as a result of

• an order made by the Licensing Board receiving a notice of conviction;
• the Licensing Board finding in the course of a review hearing that the licence holder whilst working in a licenced premises acted in a manner which was inconsistent with any of the licensing objectives.

10.44 A personal licence holder may apply to the relevant Licensing Board, once the endorsement has expired, to have it removed. When a Licensing Board receives such an application it must remove the endorsement if it has expired. An expired endorsement is to be disregarded whether or not it has been removed from the licence.

10.45 Section 86 provides that when a personal licence holder receives 3 endorsements to their licence under sections 83 and 84 then the Licensing Board which issued the personal licence must hold a hearing to consider what action is taken against the licence holder.

• at any hearing a Licensing Board may give the licence holder and any other person(s) as the Licensing Board considers appropriate an opportunity to be heard; and
• if the Licensing Board considers it necessary to do so for the purposes of any of the licensing objectives make an order;
• an order can be made: suspending the licence for any period not exceeding six months or revoking the licence.
• the Licensing Board must give the licence holder notice of the order and of the reasons for making it;

The licence holder has a right of appeal to the Sheriff against any order made.