Publication - 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

0 B

94 page PDF

0 B

Contents
Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities
6. Personal Licence

94 page PDF

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6. Personal Licence

Background

159. This Chapter provides advice about best practice in administering the process for issuing personal licences to sell or supply alcohol. It should be stressed that a personal licence is not a qualification that is associated with business competency.

160. The personal licence is intended to ensure that anyone managing premises is suitably capable to do so. In that respect the emphasis is on ensuring appropriate training, both in the applicable law and in how to deal with customers. For this reason, we expect the personal licence to become a recognised level of attainment held by those pursuing a career in the licensed trade.

161. The personal licence remains in force for a period of 10 years, with the possibility of renewal for further periods of 10 years thereafter. English and Welsh personal licences are not transferable to Scotland under the new licensing system due to differences in the recognised relevant convictions and training requirements.

162. When issuing personal licences, Licensing Boards may use the unique local authority identifiers as a prefix to the numbers they issue for each personal licence. The list of identifiers which Boards may use is set out at Annex 4 to this guidance. In cases where local authorities have split their areas into separate Board areas, it would be good practice to adopt unique reference numbering for each of their respective areas to identify the Board area for which licenses are issued.

Premises manager

163. Section 19 of the Act defines the term "premises manager". Each premises must have one named premises manager, whose details will be given in the premises license. The named premises manager must be a personal licence holder. This is a mandatory licence condition for premises licences. A named premises manager cannot be the premises manager for more than one premises at a time. Each premises can have more than one personal licence holder should they wish, but only one can be designated as the premises manager. Holding a personal licence authorises that person to supervise or authorise the sale of alcohol.

164. The named premises manager will be responsible for the day to day running of the premises, responsible for the training and supervising of the staff, and ensuring the premises is run in accordance with the requirements of the licence. The Act requires a named premises manager for each premises since this carries a greater responsibility, as the sale and supply of alcohol can have a wide impact on the wider community and on crime and anti-social behaviour. It is therefore important to have one responsible person who will require to be knowledgeable of the law and experienced in the supervision and training of staff and suitably qualified. Ultimately the designated premises manager will be held responsible by the Licensing Board.

165. Alcohol must not be sold on the premises (other than where section 54 of the Act applies) at any time when: -

  • There is no named premises manager in respect of the premises (i.e. one has not been designated);
  • The named premises manager does not hold a personal licence;
  • The personal licence held by the named premises manager is suspended; or
  • The licensing qualification held by the premises manager is not the appropriate licensing qualification in relation to the premises.

166. The Act does not require a holder of a personal licence to be on the premises at all times when alcohol is being sold on the premises. Whilst the Act requires every sale to be "authorised" by a personal licence holder, such authorisation can be a general one. This does not mean general authorisations being necessarily given by a person who is present on the premises when the relevant sale is made.

167. This does not, however, mean that where a personal licence holder is not present they are removed from all responsibility. For example, where a sale of alcohol to a child is made, then the barperson making the sale may be considered responsible under the provisions of section 102 of the Act. However, section 103 may also make the premises manager or other personal licence holder responsible (whether or not present on the premises at the time). It will depend upon whether the sale has been "knowingly allowed", which will in turn depend on the facts and circumstances of the particular case.

168. Similarly, a sale of alcohol by a non-qualified person (contrary to paragraph 6(1) of schedule 3) may make a (non-present) licence holder responsible under section 1 of the Act if that holder has knowingly allowed the sale (section 1(3)(b)).

169. It must be stressed that these scenarios are provided as examples and each case would have to be considered in each individual set of circumstances.

Application/Eligibility for personal licences

170. In order to be issued with a personal licence an applicant must demonstrate to the relevant Licensing Board that:

  • They are aged 18 or over;
  • They possess a licensing qualification; and
  • No personal licence previously held by applicant has been revoked within the period of 5 years ending with the day on which the application was received.

171. In determining applications for personal licences an important element is the notification process requiring Boards to notify the chief constable of all applications. This notification process allows the chief constable to confirm whether or not the applicant has been convicted of a relevant offence. If they have, the police can recommend refusal of the application.

172. If the applicant has no relevant convictions and meets all the conditions set out in section 74(3) of the Act, then the Board must grant the licence.

173. Under section 75 of the Act applicants are under a duty to notify the Licensing Board should they be convicted of a relevant or foreign offence during the application period. Should Boards receive such notifications they must suspend consideration of the application and notify the police of the conviction seeking either confirmation of the relevant or foreign offence or that no relevant or foreign offence has been committed. At this time should a relevant or foreign offence have been committed the chief constable may recommend refusal of the application. Licensing Boards must resume consideration of the application process and, in these circumstances, take the chief constable's recommendations into consideration when determining the application.

Renewal of personal licence

174. Renewal of the personal licence every ten years provides an opportunity to check that any convictions for relevant and foreign offences have been properly notified to the relevant licensing authority, and that all such convictions have been properly endorsed upon the licence. It also provides an opportunity to ensure that the photograph of the holder on the personal licence is updated to aid identification.

175. The determination of an application for renewal of a personal licence will be the same as an application for a personal licence: the clerk may deal with it if the formalities are correct and there are no convictions. If there are convictions and/or a recommendation from the police, the Board must have a hearing to consider the application and may refuse to grant a further licence.

Licensing qualifications/training

176. Section 74(3) of the Act requires that to be eligible for a personal licence an applicant must hold a licensing qualification. Furthermore personal licence holders are required to undertake mandatory training every 5 years as set out in section 87 of the Act. Section 91 of the Act provides a power for Ministers to set out in regulations which qualifications are applicable.

Relevant Licensing Board

177. Personal licences are valid for ten years unless surrendered, suspended or revoked. Once granted, the Licensing Board which issued the licence remains the "relevant Licensing Board" for it and its holder, even though the individual may move out of the area or take employment elsewhere within the period for which the licence is valid. The personal licence will show details of the issuing Licensing Board.

Review of the personal licence

178. The new licensing system provides for a pro-active role for Boards and a range of sanctions that can be used against a personal licence holder where that action may be appropriate. The Act does, however, provide a mechanism whereby Licensing Boards should consider all the relevant facts before considering any action.

179. The Act, therefore, provides that Licensing Boards must hold a review hearing should they become aware of the following: -

  • They receive notification from the court of a conviction for a relevant or foreign offence; or
  • They receive notification from the licence holder of any conviction (they are required to notify the Board within one month of the date of the conviction), for a relevant or foreign offence.

180. These hearings are not courts of law. Anyone asked to provide the Boards with evidence does not do so under oath. They are an opportunity for Boards to hear all the circumstances relating to a particular case to aid them in making a judgement, and also an opportunity for a licence holder's case to be heard. Any hearing should not be intimidating for the licence holder, and hearings should be conducted in an open and fair manner. However, Boards will be acting in a quasi-judicial manner and an appropriate degree of formality will be necessary.

181. If following a hearing, a Licensing Board considers that a sanction is required against the personal licence holder then, depending on the circumstances, they can take one of the following actions: -

  • Revoke the licence;
  • Suspend the licence for such period, not exceeding 6 months, as the Board considers appropriate; or
  • Endorse the personal licence

182. The introduction of endorsements is based on a similar approach taken with driving licences. Should a personal licence holder receive 3 endorsements from the Licensing Board, section 86 of the Act requires Boards to hold a hearing. Following a hearing, the Board can decide to take no further action, or if further action is warranted may: -

  • Suspend the personal licence for such period, not exceeding 6 months, as the Board considers appropriate; or
  • Revoke the licence

183. If this action is taken then the Board must give the licence holder notice of this and the reasons for the decision.

Changes in name or address

184. The holder of the licence is required by section 88 of the Act to notify the Licensing Board of any changes of name or address. These changes should be recorded by the Licensing Board and the procedure for this is set out in section 89 of the Act.

Updating the personal licence

185. It is essential that the details contained on the personal licence are accurate and kept up to date. In order to achieve this, the Act places a duty on Licensing Boards to update the personal licence should any of the following occur: -

  • A personal licence is reviewed, enter the renewal date;
  • Where a licence is suspended, enter the date and period of any suspension;
  • The Board receives notification of a conviction, enter the date of the conviction and the nature of the offence;
  • A personal licence is endorsed by the Board, the Board must enter details of the conviction or conduct giving rise to the endorsement;
  • The Board receives notification of a change of name and/or address the new details must be entered; and
  • Where a Board receives details of training undertaken those details must be entered

Relevant offences

186. The relevant offences will be set out in Regulations.


Contact

Email: Central Enquiries Unit ceu@gov.scot