Publication - Advice and guidance

Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities

Published: 16 Apr 2007
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9780755966080

Guidance on section 142 of the Licensing (Scotland) Act 2005 for licensing boards and local authorities.

94 page PDF

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94 page PDF

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Contents
Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities
12. Other offences

94 page PDF

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12. Other offences

284. This Chapter provides guidance about a number of offences contained in the Act. It does not deal with those offences relating to children and defences against such offences which are contained in Chapter 10 of the Guidance, or with offences relating to rights of entry and inspection or non-compliance with administrative requirements with which Licensing Boards will be more familiar.

General - Bodies corporate

285. Section 141 of the Act provides for certain persons responsible for the management or control of these bodies to share criminal responsibility for offences committed under the Act with their consent or connivance or due to their neglect.

Prohibition of unlicensed sale of alcohol

286. The Act makes provision for the regulation of the sale of alcohol, and for regulating licensed premises and other premises where alcohol is sold and for connected purposes. As such alcohol must only be sold on any premises under and in accordance with the premises licence, or an occasional licence applied for and granted under the Act. However, Boards should be aware that this does not apply in the case of alcohol sold on a premises designated as an "exempt premises" under section 124 of the Act, or where alcohol is sold to the trade.

287. Anyone who sells alcohol, or knowingly allows the sale of alcohol that does not fall into the category set out above commits an offence. The selling of unauthorised alcohol is a serious offence and as such the level of fine for someone convicted of such an offence is set at a maximum of £20,000.

Drunk person entering or in premises on which alcohol is sold

288. It is an offence for a drunk person to attempt to enter any relevant premises. It is also an offence for a person, whilst on relevant premises, 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.

Obtaining alcohol by or for a drunk person

289. It is an offence under section 112 to obtain or attempt to obtain, on relevant premises, alcohol for consumption on those premises by a person who is drunk.

Sale of alcohol to a drunk person

290. It is an offence to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person, on relevant premises. The offence may be committed by any person who works at the premises, whether paid or unpaid, in a capacity that gives him the authority to sell the alcohol, a premises licence holder or named premises manager, who is present at the time of the sale and who has authority to prevent it.

Premises manager, staff etc. not to be drunk

291. It is an offence for any responsible person to be on any relevant premises whilst drunk.

Disorderly conduct

292. This offence is central to the management of premises where alcohol is sold for consumption on those premises whether exempt premises or not. Its existence is central to the safety of law-abiding customers on the premises. It is an offence knowingly to allow disorderly conduct on relevant premises. The offence may be committed by any person who works at the premises, whether paid or unpaid, in a capacity that gives him the authority to prevent the conduct, a premises licence holder or named premises manager, who is present at the time of the disorder and who has authority to prevent it. The Licensing Board should draw the attention of any person, or business granted a premises licence, or occasional licence to this offence and of the Licensing Board's readiness to take any action permitted by the Act against any person who fails in his duty in this respect. It is important to note the words "allow" disorderly conduct on relevant premises. The outbreak of disorder may not of itself give rise to this offence. It is the failure to address the problem either through direct action or calling the police that is likely to give rise to an offence.

293. Licensing Boards should be aware that there is a defence for the person charged with allowing disorderly conduct on the premises set out in section 115 of the Act. It will be a defence where; the accused can prove that they took all reasonable precautions and exercised due diligence not to commit the offence. And that there were no lawful and reasonably practical means by which the accused could prevent the conduct giving rise to the offence.

Refusal to leave premises

294. It is an offence if a person who is drunk or disorderly refuses to leave a relevant premises at the request of a responsible person or a constable. Responsible person is defined in section 122 of the Act.

295. It is also an offence for a person to refuse to leave a relevant premises, when asked by a responsible person or constable, after the end of any period of licensed hours. Where such a person does refuse to leave a relevant premises, the Act allows any "authorised person to remove the person from the premises, and if necessary for that purpose to use reasonable force. The Act requires that should the authorised person seek the assistance of the constable, then the constable must give the necessary assistance asked for.

296. Licensing Boards, Licensing Standards Officers, and the police should note that anti-social behaviour once customers are beyond the direct control of licensees and managers of licensed premises will sometimes be a result of sales made earlier on licensed premises when an individual was drunk. It is therefore important that such offences are prosecuted effectively to ensure that there is a strong deterrent in respect of such sales. The control of excessive consumption and drunkenness on relevant premises should reduce the risk of anti-social behaviour occurring elsewhere after customers have left the premises.

297. The 2005 Act does not change the ability of staff to refuse entry, nor does it require them to give a reason for refusal.

Offences relating to sale of alcohol to trade

298. The Act provides that any sale to another trader should be exempt from licence requirements, regardless of minimum quantities sold. This approach focuses on the nature of the activity (i.e. selling to trade) rather than on quantities sold. As long as the sale of alcohol is made to another trader, no premises licence will be required, regardless of whether it is a single bottle or a case of wine that is being sold.

299. However, it is an offence for a person to sell alcohol to trade otherwise than from premises not used exclusively for the purpose of selling to trade (whether such sale is solely of alcohol or not).

Prohibition of unauthorised sale of alcohol on moving vehicles

300. The Act provides that moving vehicles, on which alcohol is sold can now be adequately licensed under the new regime by either a premises or occasional licence. In particular, Licensing Boards will now be able to license "party vehicles" such as stretched limousines and decommissioned fire engines.

301. It is an offence for any person to knowingly sell alcohol on any such vehicle whilst it is moving unless authorised to do so by a premises licence or occasional licence.

Delivery of alcohol from vehicles

302. All deliveries and carrying of alcohol in vehicles must be properly and clearly recorded under the provisions of the Act. Before a delivery of alcohol is dispatched the delivery driver must ensure that the quantity, a description and price of the alcohol, and the name and address of the person to whom the alcohol is being delivered, is recorded in a day book kept on the premises from where the alcohol, is being dispatched. The driver must also carry an invoice or delivery book on his person containing the same information. Not do so will be an offence.

303. It is also an offence for any person to deliver the alcohol to an address other then that listed in the day book. However, it should be stressed that these requirements do not apply to deliveries of alcohol to a trader for the purposes of that person's trade (e.g. retailers' distribution networks delivering to stores).

Prohibition of late night deliveries of alcohol

304. It an offence for anyone who works on a licensed premises which sells alcohol for consumption off the premises to deliver alcohol between midnight and 6 am. It is also an offence for any responsible person to allow such a delivery.

Keeping of smuggled goods

305. The sale of contraband cigarettes and alcohol is a matter of considerable concern to Ministers. In addition, some of the goods sold are fake products smuggled from other countries on behalf of organised criminal gangs. Such products could contain dangerous ingredients.

306. The Act provides that it is an offence knowingly to keep or allow to be kept, on relevant premises, any goods which have been imported without payment of duty or which have otherwise been unlawfully imported.

307. The Act also provides that a court which convicts a person of this offence may order the confiscation of the goods in question and their containers, which may then be either destroyed or dealt with as the court orders. Licensing Boards should liaise closely with Customs and Excise in respect of the investigation and prosecution of such offences.


Contact

Email: Central Enquiries Unit ceu@gov.scot