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

13. Other Offences

Introduction

13.1 Part 8 of the 2005 Act sets out offences relating to children and young people (covered in chapter 12 of this guidance), drunken and disorderly conduct and miscellaneous offences. Other offences are set out at sections 1 and 141 respectively. This chapter does not deal with offences relating to the rights of entry and inspection or non-compliance with administrative requirements with which Licensing Boards will be well versed.

Prohibition of unlicensed sale of alcohol

13.2 The 2005 Act makes provision for regulating the sale of alcohol, and for regulating licensed premises and other premises on which alcohol is sold. Section 1 establishes that a licence is required to sell alcohol unless the premises are exempt as defined in section 124 or to trade. Examples of "exempt" premises are, "an aircraft, a hovercraft or a railway vehicle while engaged on a journey" and "a vessel while engaged on an international journey".

13.3 Anyone who sells alcohol or allows alcohol to be sold in breach of the conditions described in section 1 commits an offence. Section 195(2) of the Criminal Justice and Licensing Act 2010 repeals the word "knowingly" from a range of offences in the 2005 Act (including this offence). Where criminal conduct has been allowed to take place in terms of the listed offences, an offence will be committed whether or not the person involved has knowledge of the conduct taking place. A person guilty of such an offence is liable on summary conviction to a fine not exceeding £20,000, imprisonment for a period not exceeding 6 months or both.

Drunkenness and disorderly conduct

13.4 A number of offences fall under this heading:

• Drunk person entering or in premises on which alcohol is sold (section 111)
• Obtaining of alcohol by or for a drunk person (section 112)
• Sale of alcohol to a drunk person (section 113)
• Premises manager, staff etc. not to be drunk (section 114)
• Disorderly conduct (section 115)
• Refusal to leave premises (section 116)

Drunk persons entering or in premises on which alcohol is sold

13.5 Section 111 makes it an offence for:

• a drunk person to attempt to enter (unless they reside in the premises) any premises in which alcohol is lawfully sold.
• a person, whilst on premises in which alcohol is lawfully sold, to be drunk and incapable of taking care of himself or herself.

A person committing an offence under this section can be arrested without warrant by the police. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 1 on the standard scale (£200).

Obtaining of alcohol by or for a drunk person

13.6 Section 112 makes it an offence for any person to buy or attempt to buy alcohol for someone who is drunk or to help a drunk person to obtain or consume alcohol. The offences only apply where the alcohol is to be consumed on premises in which alcohol is lawfully sold. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

Sale of alcohol to a drunk person

13.7 Section 113 makes it an offence for the premises manager and any other person working on the premises, in which alcohol is lawfully sold, to sell alcohol to someone who is drunk. A person guilty of a such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

13.8 In seeking to promote each of the licensing objectives, many Licensing Boards' Statements of Licensing Policy contain information regarding "control measures" which the Licensing Board and the Licensing Standards Officer encourage license holders to put in place. For example Highland Licensing Board's current statement of licensing policy provides examples of control measures such as:

In the interest of protecting and improving public health:

• making available information promoting moderate drinking, awareness of units of alcohol and recommended guidelines;
• having a policy to deal with patrons who have consumed excessive alcohol (where not already required by the local condition on staff duty of care).
• ensuring staff awareness of offences such as sale of alcohol to a drunk person

Premises manager, staff etc. not to be drunk

13.9 Section 114 makes it an offence for the premises manager and anyone else who working on the premises, in which alcohol is lawfully sold, to be drunk on the premises. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

Disorderly conduct

13.10 Section 115 makes it an offence for any person while drunk: to behave in a disorderly manner or to annoy others with offensive language on premises in which alcohol is lawfully sold. A person guilty of behaving in a disorderly manner is liable on summary conviction to: (a) a fine not exceeding level 3 on the standard scale (£1,000), (b) imprisonment for a term not exceeding 60 days, or (c) both. A person guilty of annoying others with offensive language is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

13.11 It is also an offence for the premises manager and anyone else working on premises, in which alcohol is lawfully sold, to allow disorderly conduct on the premises. Provision is made for a "due diligence" defence for a person charged with this offence. It will be a defence where: the accused or an employee or agent of the accused, can prove that they took all reasonable precautions and exercised due diligence not to commit the offence; or that there were no lawful and reasonably practical means by which the accused could prevent the conduct giving rise to the offence. A person found guilty of this offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

Refusal to leave premises

13.12 Section 116 makes it an offence for a disorderly person to refuse to leave premises, in which alcohol is legally sold, when asked or for any person to refuse to leave licensed premises at closing time when asked. Certain authorised persons are allowed to use reasonable force to remove from any premises on which alcohol is sold a person who is behaving in a disorderly manner but refuses to leave when asked. "Authorised persons" are the premises manager and anyone else who works on the premises who has been authorised by the premises manager for the purposes of this section.

Miscellaneous Offences

13.13 A number of offences fall under this heading:

• Offences relating to sale of alcohol to trade (section 117)
• Prohibition of unauthorised sale of alcohol on moving vehicles (section 118)
• Delivery of alcohol from vehicles etc. (section 119)
• Prohibition of late-night deliveries of alcohol (section 120)
• Keeping of smuggled goods (section 121)

Offences relating to sale of alcohol to trade

13.14 Section 117, as enacted, made it an offence for a person to sell alcohol to trade otherwise than from premises used exclusively for the purpose of selling to trade. The Criminal Justice and Licensing Act 2010 amended this section to correct an unintended consequence – i.e. if, for example, a restaurant owner wished to buy alcohol for their restaurant from a supermarket instead of the wholesaler, the restaurant owner would, under the 2005 Act as enacted, be committing an offence. The amendment means it is no longer an offence for a licensed premises to sell to the trade. A person guilty of an offence under section 117 is liable on summary conviction to a fine not exceeding level 5 on the standard scale (£5,000).

13.15 The sale of alcohol, no matter what the quantities, to trade does not require to be carried out under and in accordance with an alcohol licence. Wholesalers who sell alcohol to non-trade as well as trade will require a premises or occasional licence and any non-trade sales will be bound by the terms of the specific alcohol licence.

Prohibition of unauthorised sale of alcohol on moving vehicles

13.16 Section 118 deals with, for example, "party buses" and "stretch limousines" that provide alcohol. It makes it an offence for any person to sell alcohol on any vehicle whilst it is moving unless authorised to do so. As mentioned above, section 195(2) of the Criminal Justice and Licensing Act 2010 repeals the word "knowingly" from certain offences in the 2005 Act (including this offence). In terms of the 2005 Act, "vehicle" means a vehicle intended or adapted for use on roads. A person guilty of an offence under this section is liable on summary conviction to: (a) a fine not exceeding £20,000, (b) imprisonment for a term not exceeding 3 months, or (c) both.

Delivery of alcohol from vehicles etc.

13.17 Section 119 deals with deliveries of alcohol (does not include any alcohol being delivered to a trader for the purposes of that person's trade) and requires that all such deliveries and carrying of alcohol in vehicles is properly and clearly recorded. Offences are committed where:

• the quantity, description and price of the alcohol sold and name and address of the person to whom the alcohol is to be delivered is not recorded in a day book nor in a delivery book or invoice carried by the person delivering the alcohol prior to despatch by the person who sold the alcohol;
• a person carries in a vehicle in use for the delivery of alcohol, following a sale of alcohol by them and the quantity, description and price of the alcohol was not entered in the day book and delivery book/invoice;
• a person delivers the alcohol to an address not entered in the day book and delivery book/invoice;
• a person refuses to allow a constable or a Licensing Standards Officer to examine any vehicle or any day book and delivery book/invoice.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

Prohibition of late-night deliveries of alcohol

13.18 Section 120 applies where alcohol is sold on any relevant premises for the consumption off the premises. For the purposes of Part 8 of the 2005 Act "relevant premises" means: any licensed premises; any exempt premises on which alcohol is sold; and any premises used for the selling of alcohol to trade. Offences are committed where:

• a responsible (see section 122 for a definition) person delivers or allows the alcohol to be delivered to any premises (other than licenced premises) between the hours of midnight and 6am.

As mentioned above, section 195(2) of the Criminal Justice and Licensing Act 2010 repealed the word "knowingly" from certain offences in the 2005 Act (including these offences). A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000).

Keeping of smuggled goods

13.19 Section 121 makes it an offence to keep or allow to be kept on any licensed premises any goods which have been imported without payment of duty or which have otherwise been unlawfully imported. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale (£1,000). A power is also granted to the courts to order the forfeiture or destruction of such goods.

Offences by bodies corporate etc

13.20 Section 141 deals with offences committed by companies, partnerships and other bodies. It effectively provides for certain persons responsible for the management or control of these bodies to share criminal responsibility for offences committed with their consent or connivance or due to their neglect.

Defence of due diligence

13.21 Section 141B of the 2005 Act provides a defence to certain offences where the person accused had no knowledge that the offence was being committed and exercised all due diligence to prevent the offence being committed. This provision was inserted into the 2005 Act by the Criminal Justice and Licensing (Scotland) Act 2010.

Vicarious liability of premises licence holders and interested parties

13.22 This is a technical area and it might be helpful to say a few words about the policy rationale for inserting section 141B into the 2005 Act. This was discussed during the Stage 2 consideration of what was then the Criminal Justice and Licensing (Scotland) Bill ("the Bill").

13.23 The Scottish Government considers that those who operate licensed premises must carry a high degree of responsibility for the operation of their premises and the actions of their staff. No licence holder should be able to evade responsibility by staying away from their premises without fear of being convicted of an offence arising from an act or omission by a member of their staff while they are absent.

13.24 As discussed during Stage 2 of the Bill, that problem was addressed in the 2005 Act, which ensures that there is a person directly responsible for the sale of alcohol on a licensed premises in the form of a designated premises manager, who must hold a personal licence.

13.25 However, it is also the case that for a significant proportion of the licensed trade, the operational structure is that head office dictates the policies that must be pursued on individual premises. Often, managers have no freedom about what signage is used or what products are placed on offer. Therefore, whether or not the manager is the designated premises manager, how the premises operate is dictated from elsewhere. In effect, the licence-holding company can simply continue by sacking managers and not being held responsible for their actions.

13.26 At the time the Bill was progressing through Parliament, the licence holder could escape punishment by claiming ignorance of the conduct in question and could not be held to account for failures to introduce adequate management systems and staff training. Section 141B, which was drafted in consultation with the police, ensures that premises licence holders can be held liable for a number of offences committed by members of their staff. Section 141B also ensures that premises licence holders are correctly afforded a defence of due diligence, where they can demonstrate the consistent steps that they took to prevent those offences from being committed.