Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Licensing (Scotland) Act 2005

Type Act of the Scottish Parliament

Publication 2005-12-21

Last updated 2024-04-30

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(1) Where 3 endorsements have been made in any personal licence, the Licensing Board which issued the licence must hold a hearing.

(2) At the hearing, the Licensing Board may—

(a) after giving—

(i) the holder of the licence, and

(ii) such other persons as the Board considers appropriate,

an opportunity to be heard, and

(b) if they consider it necessary to do so for the purposes of any of the licensing objectives,

make an order under subsection (3).

(3) That is an order—

(a) suspending the licence for such period, not exceeding 6 months, as the Board considers appropriate, or

(b) revoking the licence.

(4) Where the Licensing Board makes an order under subsection (3), the Board must give the licence holder notice of the order and of the reasons for making it.

Licence holder's duty to undertake training

Licence holder’s duty to undertake training

87

(1) The holder of a personal licence must, no later than 3 months after the expiry of—

(a) the period of 5 years beginning with the date on which the licence holder's licence was issued, and

(b) each subsequent period of 5 years during which the licence has effect,

produce to the Licensing Board which issued the licence evidence in the prescribed form of the licence holder's having complied, during that period, with such requirements as to the training of personal licence holders as may be prescribed.

(2) A Licensing Board must—

(a) in relation to each personal licence issued by it, and

(b) no later than 3 months before the expiry of each period mentioned in subsection (1),

give to the holder of the licence notice of the requirement imposed by that subsection.

(3) If a personal licence holder fails to comply with subsection (1), the Licensing Board which issued the licence held by the licence holder must revoke the licence.

(4) Regulations under subsection (1) prescribing training requirements may, in particular—

(a) provide for accreditation by the Scottish Ministers of—

(i) courses of training, and

(ii) persons providing such courses,

for the purposes of the regulations,

(b) prescribe different requirements in relation to different descriptions of personal licence holder, and

(c) require that any person providing training or any particular description of training in accordance with the regulations holds such qualification as may be prescribed in the regulations.

Update of licence

Notification of change of name or address

88

(1) A personal licence holder must, no later than one month after any change in the licence holder's name or address, give the Licensing Board which issued the licence notice of the change.

(2) A notice under subsection (1) must be accompanied by the personal licence or, if that is not practicable, by a statement of the reasons for the failure to produce the licence.

(3) A personal licence holder who fails, without reasonable excuse, to comply with subsection (1) commits an offence.

(4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

Licensing Board’s duty to update licence

89

(1) In this section, the “issuing Licensing Board” means, in relation to a personal licence, the Licensing Board which issued the licence.

(2) Where the issuing Licensing Board grants a personal licence renewal application made in respect of any personal licence, the Board must make the necessary amendment to the expiry date specified in the licence.

(3) Where a personal licence is suspended by virtue of any provision in this Act, the issuing Licensing Board must amend the licence so as to specify in it—

(a) the date, and

(b) period,

of the suspension.

(4) Where the issuing Licensing Board receives a notice of conviction in relation to any personal licence holder, the Board must amend the personal licence held by the licence holder so as to specify in it—

(a) the date of the conviction, and

(b) the nature of the offence,

unless the Board has already done so by virtue of any previous such notice.

(5) Where the issuing Licensing Board—

(a) makes an order under section 83(9)(c) or 84(7)(c) in relation to any personal licence holder, or

(b) receives notice under section 83(10)(c) or 84(8)(c) of such an order made by another Licensing Board,

the Board must amend the personal licence held by the licence holder so as to include in it a statement that it is endorsed together with the details of the conviction or conduct giving rise to the making of the order.

(6) Where the issuing Licensing Board receives a notice under section 88(1) from a personal licence holder, the Board must amend the personal licence of the licence holder so that it specifies the licence holder's new name or address.

(7) Where the issuing Licensing Board receives evidence of training produced by a personal licence holder in accordance with section 87(1), the Board must amend the personal licence held by the licence holder so as to include in it the prescribed details of the training.

(8) Where the issuing Licensing Board is not in possession of a personal licence and—

(a) the licence has been revoked under any provision of this Act, or

(b) the Board requires the licence for the purpose of complying with any duty under this section in relation to the licence,

the Board may require the holder of the licence to produce it to the Board within 14 days from the date on which the requirement is notified.

(9) A personal licence holder who fails, without reasonable excuse, to comply with a requirement made under subsection (8) commits an offence.

(10) A person guilty of an offence under subsection (9) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(11) In this section, “notice of conviction” means a notice under section 81(2) or 82(2).

Miscellaneous

Power to specify which Licensing Board is to exercise functions under this Part

90

(1) The Scottish Ministers may by order provide for any function exercisable under this Part by a Licensing Board of a particular description to be exercisable instead by a Licensing Board of such other description as may be specified in the order.

(2) An order under subsection (1) may—

(a) modify this Act, and

(b) make different provision in relation to different functions.

Power to prescribe licensing qualifications

91

(1) In this Act, “licensing qualification” means—

(a) such qualification, or

(b) a qualification of such description,

as may be prescribed.

(2) Regulations under subsection (1) may, in particular—

(a) prescribe qualifications or descriptions of qualifications by reference to whether they are—

(i) accredited, or

(ii) awarded by a person who is accredited,

for the purposes of this section by the Scottish Ministers in accordance with the regulations,

(b) prescribe qualifications or descriptions of qualifications awarded outwith Scotland (as well as qualifications awarded within Scotland),

(c) prescribe different qualifications in relation to different licensed premises or licensed premises of different descriptions, and

(d) prescribe such qualifications as the appropriate licensing qualifications in relation to those descriptions of licensed premises for the purposes of paragraph 4(2) of schedule 3.

Theft, loss etc. of personal licence

92

(1) This section applies where the Licensing Board which issued a personal licence receives from the holder of the licence an application for a replacement personal licence.

(2) If satisfied that—

(a) the personal licence held by the applicant has been lost, stolen, damaged or destroyed, and

(b) where it has been lost or stolen, the applicant has reported the loss or theft to the police,

the Licensing Board must issue to the applicant a replacement personal licence.

(3) A replacement personal licence is a copy of the personal licence held by the applicant—

(a) in the form in which it existed immediately before it was lost, stolen, damaged or destroyed, and

(b) certified by the Board to be a true copy.

(3A) A replacement personal licence is void if at the time it is issued the personal licence in respect of which it was issued is not lost, stolen, damaged or destroyed.

(3B) Where a replacement personal licence is issued in respect of a personal licence which has been lost or stolen, the replacement personal licence becomes void if the personal licence is subsequently found or recovered.

(3C) A person who holds a void replacement personal licence must surrender it to the Licensing Board.

(3D) A person who, without reasonable excuse, fails to comply with subsection (3C) commits an offence.

(3E) A person who passes off a void replacement personal licence as a valid licence, knowing that the licence is void, commits an offence.

(3F) A person guilty of an offence under subsection (3D) or (3E) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) In this Act, references to a personal licence include references to a replacement personal licence issued under this section.

Licence holder’s duty to produce licence

93

(1) This section applies where the holder of a personal licence is working at any licensed premises.

(2) A constable or Licensing Standards Officer may, at any time when the licence holder is on the licensed premises, require the licence holder to produce the licence for examination.

(3) A person who fails, without reasonable excuse, to comply with a requirement made under subsection (2) commits an offence.

(4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

Part 7 — Control of order

Exclusion of violent offenders

Exclusion orders

94

(1) This section applies where a person is convicted of a violent offence committed on, or in the immediate vicinity of, any licensed premises in respect of which a premises licence has effect (referred to in this section and section 96 as “the licensed premises concerned”).

(2) The court by or before which the person is convicted of the offence may, in addition to any sentence imposed or other disposal in respect of the offence, make an order prohibiting the person from entering—

(a) the licensed premises concerned, and

(b) such other licensed premises (if any) as the court may specify in the order,

except with the appropriate consent.

(3) The holder of the premises licence in respect of the licensed premises concerned may, by summary application to the sheriff of the appropriate sheriffdom made no later than 6 weeks after the date of the conviction, seek an order prohibiting the person convicted from entering the licensed premises concerned except with the appropriate consent.

(4) On such an application, the sheriff, if satisfied that—

(a) there is a substantial risk that the person convicted will commit a further violent offence on, or in the immediate vicinity of, the licensed premises concerned, and

(b) an order has not been made under subsection (2) in relation to the person in respect of the same conviction,

may grant the order sought.

(5) For the purposes of an application under subsection (3), where the sheriff is satisfied that the person to whom the application relates has been convicted as mentioned in subsection (1), it is to be presumed, unless the contrary is proved, that the risk referred to in subsection (4)(a) exists.

(6) An order under subsection (2) or (4) is referred to in this Act as an “exclusion order”.

(7) An exclusion order has effect, subject to section 95(3), for such period, being not less than 3 months and not more than 2 years, as is specified in the order.

(8) In this section—

“the appropriate consent” means, in relation to any licensed premises, the express consent of—the premises licence holder in respect of the premises, ora person authorised by the premises licence holder to give consent for the purposes of this section,

“the appropriate sheriffdom” means the sheriffdom in which the licensed premises concerned are situated,

“violent offence” means any offence involving violence or the threat of violence.

Breach of exclusion order

95

(1) A person who enters licensed premises in breach of an exclusion order commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to—

(a) a fine not exceeding level 4 on the standard scale,

(b) imprisonment for a term not exceeding one month, or

(3) The court by or before which a person is convicted of an offence under subsection (1) of breaching an exclusion order made under section 94(2) may, if it thinks fit, terminate the exclusion order or vary it so as to delete any licensed premises specified in it.

(4) Where, in relation to any licensed premises, an authorised person reasonably suspects a person of having entered the premises in breach of an exclusion order, the authorised person may—

(a) remove the person from the premises, and

(b) if necessary for that purpose, use reasonable force.

(5) A constable must, if—

(a) asked by an authorised person to assist in exercising a power conferred by subsection (4), and

(b) the constable reasonably suspects the person to be removed of having entered the premises in breach of an exclusion order,

provide the assistance asked for.

(6) In this section, “authorised person” means, in relation to licensed premises, any of the following persons, namely—

(a) the premises licence holder,

(b) the premises manager, and

(i) works on the premises, and

(ii) is authorised by the premises licence holder or the premises manager for the purposes of this section.

Exclusion orders: supplementary provision

96

(1) References in section 94 to a person's being convicted of an offence are, in the case mentioned in subsection (2), to be read as references to the court's being satisfied that the person committed the offence.

(2) That case is the case where—

(a) the person is charged with the offence before a court of summary jurisdiction, and

(b) the court, without proceeding to conviction, discharges the person absolutely under section 246(3) of the Criminal Procedure (Scotland) Act 1995 (c. 46).

(2A) For the purposes of section 94, section 247(1) of the Criminal Procedure (Scotland) Act 1995 (c.46) (convictions deemed not be convictions where offender placed on probation or discharged absolutely) does not apply to a conviction for a violent offence within the meaning of section 94.

(3) Where—

(a) a court or the sheriff makes an exclusion order, or

(b) a court makes an order terminating or varying an exclusion order,

the clerk of the court or, as the case may be, the sheriff clerk must send a copy of the order to the premises licence holder in respect of the licensed premises concerned.

Closure of premises

Closure orders

97

(1) A Licensing Board may—

(a) on the application of a senior police officer relating to any licensed premises situated within the Board's area, and

(b) if satisfied that, by reason of the likelihood of disorder on, or in the vicinity of the premises, closure of the premises is necessary in the interests of public safety,

make a closure order in relation to the premises.

(2) A constable of or above the rank of inspector may, if the constable reasonably believes that—

(a) there is, or is likely imminently to be, disorder on, or in the vicinity of, any licensed premises,

(b) closure of the premises is necessary in the interests of public safety, and

(c) the risk to public safety is such that it is necessary to do so immediately and without making an application under subsection (1),

make a closure order in relation to the premises.

(3) A closure order is an order requiring the licensed premises to which it relates to be closed for such period, beginning with the coming into force of the order, as may be specified in the order.

(4) A closure order made ... under subsection (2) is referred to as an “emergency closure order”.

(5) The period of closure specified in an emergency closure order must not exceed 24 hours.

(6) A closure order comes into force in relation to any licensed premises to which it relates when a constable gives notice of it to a responsible person.

(7) Any responsible person who allows any licensed premises to be open in breach of a closure order commits an offence.

(8) A person guilty of an offence under subsection (7) is liable on summary conviction to—

(a) a fine not exceeding £20,000,

(b) imprisonment for a term not exceeding 3 months, or

Termination of closure orders

98

(1) A constable of or above the rank of inspector must terminate a closure order (whether or not an emergency closure order) relating to any licensed premises if the constable is satisfied that it is no longer necessary in the interests of public safety for the premises to be closed.

(2) Where a constable terminates a closure order relating to any licensed premises, the constable must ensure that notice of the termination is given by a constable to—

(a) a responsible person, and

(b) in the case of a closure order made by a Licensing Board, the Board.

(3) A Licensing Board may—

(a) on the application of the holder of the premises licence or, as the case may be, occasional licence in respect of any licensed premises to which a closure order made by the Board relates, and

(b) if satisfied that it is no longer necessary in the interests of public safety for the premises to be closed,

terminate the closure order.

Extension of emergency closure order

99

(1) Where an emergency closure order is in effect in respect of any licensed premises, a constable of or above the rank of inspector may—

(a) before the expiry of the period during which the order has effect (referred to in this section as the “original closure period”), and

(b) if the constable reasonably believes that the conditions mentioned in subsection (2) are met in relation to the premises,

extend the original closure period for a further period not exceeding 24 hours.

(2) The conditions referred to in subsection (1)(b) are—

(a) that there continues to be, or is likely to continue to be, disorder on, or in the vicinity of, the premises,

(b) that extending the original closure period is necessary in the interests of public safety, and

(c) the risk to public safety continues to be such that it is necessary to extend the original closure period immediately and without making an application under section 97(1).

(3) An extension under subsection (1) has no effect in relation to any licensed premises unless a constable has, before expiry of the original closure period, given notice of the extension to a responsible person.

Regulations as to closure orders

100

The Scottish Ministers may by regulations make further provision as to the procedure to be followed in connection with the making of closure orders and extensions to closure orders including, in particular, provision—

(a) as to the form and manner in which—

(i) any application under section 97(1)(a) or 98(3)(a) is to be made,

(ii) any notice under section 97(6), 98(2) or 99(3) is to be given,

(b) as to the form of closure orders,

Interpretation of sections 97 to 100

101

In sections 97 to 100 “responsible person” means—

(a) in the case of premises in respect of which a premises licence has effect—

(i) the premises licence holder, or

(ii) the premises manager,

(b) in the case of premises in respect of which an occasional licence has effect, the person who holds the occasional licence, and

(c) in either case, any person working at the premises in a capacity (whether paid or unpaid) which authorises the person to close the premises.

Part 8 — Offences

Offences relating to children and young people

Sale of alcohol to a child or young person

102

(1) A person who sells alcohol to a child or a young person commits an offence.

(2) It is a defence for a person charged with an offence under subsection (1) (referred to in this section as “the accused”) to show that—

(a) the accused believed the child or young person to be aged 18 or over, and

(b) either—

(i) the accused had taken reasonable steps to establish the child's or young person's age, or

(ii) no reasonable person could have suspected from the child's or young person's appearance that the child or young person was aged under 18.

(3) For the purposes of subsection (2)(b)(i), the accused is to be treated as having taken reasonable steps to establish the child's or young person's age if and only if—

(a) the accused was shown any of the documents mentioned in subsection (4), and

(b) that document would have convinced a reasonable person.

(4) The documents referred to in subsection (3)(a) are any document bearing to be—

(a) a passport,

(aa) a UK driving licence,

(b) a European Union photocard driving licence, or

(5) A person guilty of an offence under subsection (1) is liable on summary conviction to—

(a) a fine not exceeding level 5 on the standard scale,

(b) imprisonment for a term not exceeding 3 months, or

Allowing the sale of alcohol to a child or young person

103

(1) Any responsible person who ... allows alcohol to be sold to a child or a young person on any relevant premises commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to—

(a) a fine not exceeding level 5 on the standard scale,

(b) imprisonment for a term not exceeding 3 months, or

Sale of liqueur confectionery to a child

104

(1) A person who sells liqueur confectionery to a child commits an offence.

(2) It is a defence for a person charged with an offence under subsection (1) (referred to in this section as “the accused”) to show that—

(a) the accused believed the child to be aged 16 or over, and

(b) either—

(i) the accused had taken reasonable steps to establish the child's age, or

(ii) no reasonable person could have suspected from the child's appearance that the child was aged under 16.

(3) For the purposes of subsection (2)(b)(i), the accused is to be treated as having taken reasonable steps to establish the child's age if and only if—

(a) the accused was shown evidence of the child's age, and

(b) that evidence would have convinced a reasonable person.

(4) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

Purchase of alcohol by or for a child or young person

105

(1) A child or young person who buys or attempts to buy alcohol (whether for himself or herself or another person) commits an offence.

(2) It is not an offence under subsection (1) for a child or young person to buy or attempt to buy alcohol if the child or young person is authorised to do so by the chief constable for the purpose of determining whether an offence is being committed under section 102.

(3) The chief constable may authorise a child or young person to buy or attempt to buy alcohol as mentioned in subsection (2) only if satisfied that all reasonable steps have been or will be taken to avoid any risk to the welfare of the child or young person.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) A child or young person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consumption of alcohol by a child or young person

106

(1) A child or young person who knowingly consumes alcohol on any relevant premises commits an offence.

(2) Any responsible person who ... allows a child or young person to consume alcohol on any relevant premises commits an offence.

(3) Subsections (1) and (2) do not apply to the consumption of beer, wine, cider or perry by a young person along with a meal supplied on relevant premises.

(4) A child or young person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) A person guilty of an offence under subsection (2) is liable on summary conviction to—

(a) a fine not exceeding level 5 on the standard scale,

(b) imprisonment for a term not exceeding 3 months, or

Unsupervised sale of alcohol by a child or young person

107

(1) Any responsible person who ... allows alcohol to be sold, supplied or served by a child or young person on any relevant premises commits an offence.

(2) Subsection (1) does not apply to—

(a) any sale by a child or young person of alcohol for consumption off the premises, or

(b) any supply or service by a child or young person of alcohol for consumption on the premises along with a meal supplied on relevant premises,

if the condition in subsection (3) is satisfied.

(3) That condition is that the sale, supply or service is specifically authorised by—

(a) a responsible person, or

(b) any other person of or over 18 years of age who is authorised by a responsible person for the purposes of this section.

(4) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

Delivery of alcohol by or to a child or young person

108

(1) This section applies where alcohol is sold on any relevant premises for consumption off the premises.

(2) Any responsible person who allows the alcohol to be delivered by a child or young person commits an offence.

(3) Any responsible person who—

(a) delivers the alcohol, or

(b) allows it to be delivered,

to a child or young person commits an offence.

(4) Subsections (2) and (3) do not apply to the delivery of the alcohol by or to a child or young person who works on the relevant premises or at the place where the delivery is made in a capacity (whether paid or unpaid) which involves the delivery of alcohol.

(5) It is a defence for a person charged with an offence under subsection (2) or (3)(a) (referred to in this subsection and subsection (6) as “the accused”) to show that—

(a) the accused believed the child or young person to be aged 18 or over, and

(b) either—

(i) the accused had taken reasonable steps to establish the child's or young person's age, or

(ii) no reasonable person could have suspected from the child's or young person's appearance that the child or young person was aged under 18.

(6) For the purposes of subsection (5)(b)(i), the accused is to be treated as having taken reasonable steps to establish the child's or young person's age if and only if—

(a) the accused was shown any of the documents mentioned in subsection (7), and

(b) that document would have convinced a reasonable person.

(7) The documents referred to in subsection (6)(a) are any document bearing to be—

(a) a passport,

(aa) a UK driving licence,

(b) a European Union photocard driving licence, or

(8) It is a defence for a person charged with an offence under subsection (3)(b) (“the accused”) to prove that the accused took all reasonable precautions and exercised due diligence not to commit the offence.

(9) 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.

Sending a child or young person to obtain alcohol

109

(1) Any person who knowingly sends a child or young person to obtain alcohol sold or to be sold on any relevant premises for consumption off the premises commits an offence.

(2) It is immaterial for the purposes of subsection (1) whether the child or young person is sent to obtain the alcohol from the relevant premises where it is sold or from some other place from which it is to be delivered.

(3) Subsection (1) does not apply where the child or young person works on the relevant premises or at the place where the alcohol is to be delivered in a capacity (whether paid or unpaid) which involves the delivery of alcohol.

(4) A person guilty of an offence under subsection (1) is liable on summary conviction to—

(a) a fine not exceeding level 5 on the standard scale,

(b) imprisonment for a term not exceeding 3 months, or

Duty to display notice

110

(1) This section applies in relation to any relevant premises.

(2) The notice mentioned in subsection (3) must be displayed—

(a) at all times,

(b) at each place on the premises where sales of alcohol are made, and

(3) That is a notice in the prescribed form and of the prescribed dimensions containing the following statements, namely— “ It is an offence for a person under the age of 18 to buy or attempt to buy alcohol on these premises. It is also an offence for any other person to buy or attempt to buy alcohol on these premises for a person under the age of 18. Where there is doubt as to whether a person attempting to buy alcohol on these premises is aged 18 or over, alcohol will not be sold to the person except on production of evidence showing the person to be 18 or over. ”.

(4) If the requirement in subsection (2) is not met in relation to any premises, the person specified in subsection (5) commits an offence.

(5) That person is, in relation to any relevant premises—

(a) in the case of licensed premises—

(i) the premises licence holder, and

(ii) the premises manager,

(b) in the case of premises in respect of which an occasional licence has effect, the holder of the licence, and

(6) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Drunkenness and disorderly conduct

Drunk persons entering or in premises on which alcohol is sold

111

(1) A person who, while drunk, attempts to enter any relevant premises (other than premises on which the person resides) commits an offence.

(2) A person commits an offence if the person, while drunk—

(a) is on any relevant premises, and

(b) is incapable of taking care of himself or herself.

(3) A constable may arrest without warrant any person committing an offence under this section.

(4) 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.

Obtaining of alcohol by or for a drunk person

112

(1) A person who, on any relevant premises, obtains or attempts to obtain alcohol for consumption on the premises by a person who is drunk commits an offence.

(2) A person who, on any relevant premises, helps a person who is drunk to obtain or consume alcohol on the premises commits an offence.

(3) 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.

Sale of alcohol to a drunk person

113

(1) Any responsible person who, on any relevant premises, sells alcohol to a person who is drunk commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Premises manager, staff etc. not to be drunk

114

(1) Any responsible person in relation to any relevant premises who is drunk while on the premises commits an offence.

(2) 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.

Disorderly conduct

115

(1) A person on relevant premises who, while drunk—

(a) behaves in a disorderly manner, or

(b) uses obscene or indecent language to the annoyance of any person,

commits an offence.

(2) Any responsible person in relation any relevant premises who allows—

(a) a breach of the peace,

(b) drunkenness, or

to take place on the premises commits an offence.

(3) It is a defence for a person charged with an offence under subsection (2) (“the accused”) to prove—

(a) that the accused, or an employee or agent of the accused, took all reasonable precautions and exercised due diligence not to commit the offence, or

(b) that there were no lawful and reasonably practicable means by which the accused could prevent the conduct giving rise to the offence.

(4) A person guilty of an offence under subsection (1)(a) is liable on summary conviction to—

(a) a fine not exceeding level 3 on the standard scale,

(b) imprisonment for a term not exceeding 60 days, or

(5) A person guilty of an offence under subsection (1)(b) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Refusal to leave premises

116

(1) A person on any relevant premises who—

(a) behaves in a disorderly manner, and

(b) refuses or fails to leave the premises on being asked to do so by a responsible person or a constable,

commits an offence.

(2) A person on any relevant premises who, after the end of any period of licensed hours, refuses or fails to leave the premises on being asked to do so by a responsible person or a constable commits an offence.

(3) Where a person refuses or fails to leave any relevant premises as mentioned in subsection (1) or (2), an authorised person may—

(a) remove the person from the premises, and

(b) if necessary for that purpose, use reasonable force.

(4) A constable must, if—

(a) asked by an authorised person to assist in exercising a power conferred by subsection (3), and

(b) the constable reasonably suspects the person to be removed of having refused or failed to leave as mentioned in subsection (1) or (2),

provide the assistance asked for.

(5) 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.

(6) In this section, “authorised person” means, in relation to any relevant premises, any of the following persons, namely—

(a) a responsible person, and

(b) any other person who—

(i) works on the premises, and

(ii) is authorised by a responsible person for the purposes of this section.

Miscellaneous offences

Offences relating to sale of alcohol to trade

117

(1) A person who sells alcohol to trade otherwise than from licensed premises or premises which are used exclusively for the purpose of the selling of goods (whether solely alcohol or not) to trade commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Prohibition of unauthorised sale of alcohol on moving vehicles

118

(1) A person who ... sells alcohol on or from a vehicle at a time when the vehicle is not parked (whether permanently or temporarily) commits an offence, unless the selling of alcohol on or from the vehicle at such a time is expressly authorised by a premises licence or occasional licence in respect of the vehicle.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to—

(a) a fine not exceeding £20,000,

(b) imprisonment for a term not exceeding 3 months, or

Delivery of alcohol from vehicles etc.

119

(1) A person who, pursuant to a sale of alcohol by that person, delivers the alcohol from a vehicle or receptacle without the information mentioned in subsection (2) having been entered, before the despatch of the alcohol, in—

(a) a day book kept on the premises from which the alcohol is despatched, and

(b) a delivery book or invoice carried by the person delivering the alcohol,

commits an offence.

(2) The information referred to in subsection (1) is—

(a) the quantity, description and price of the alcohol, and

(b) the name and address of the person to whom it is to be delivered.

(3) A person who carries in a vehicle or receptacle in use for the delivery of alcohol pursuant to a sale of the alcohol by that person any alcohol the quantity, description and price of which was not entered as mentioned in subsection (1) commits an offence.

(4) A person who, pursuant to a sale of alcohol, delivers the alcohol to an address not entered as mentioned in subsection (1) commits an offence.

(5) A person who refuses to allow a constable or a Licensing Standards Officer to examine—

(a) any vehicle or receptacle in use for the delivery of alcohol, or

(b) any—

(i) day book kept as mentioned in subsection (1)(a), or

(ii) delivery book or invoice carried as mentioned in subsection (1)(b),

commits an offence.

(6) 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.

(7) In this section, “alcohol” does not include any alcohol being delivered to a trader for the purposes of that person's trade.

Prohibition of late-night deliveries of alcohol

120

(1) This section applies where alcohol is sold on any relevant premises for consumption off the premises.

(2) A responsible person commits an offence if the person ... delivers the alcohol to any premises (other than licensed premises) between the hours of midnight and 6am.

(3) A responsible person who ... allows the alcohol to be so delivered commits an offence.

(4) 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.

Keeping of smuggled goods

121

(1) Any responsible person who ... keeps or allows to be kept on licensed premises any goods which—

(a) have been imported without any duty payable on their importation having been paid, or

(b) have otherwise been unlawfully imported,

commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) The court by or before which a person is convicted of an offence under subsection (1) may order the goods in question to be—

(a) forfeited, and

(b) destroyed or otherwise dealt with in such manner as the court may order.

Interpretation of Part

Interpretation of Part 8

122

(1) This section has effect for the purpose of the interpretation of this Part.

(2) “Relevant premises” means—

(a) any licensed premises,

(b) any exempt premises on which alcohol is sold, and

(3) “Responsible person” means, in relation to relevant premises—

(a) in the case of licensed premises in respect of which a premises licence has effect, the premises manager,

(b) in the case of licensed premises in respect of which an occasional licence has effect, the holder of the licence,

(d) in any of those cases, any person aged 18 or over who works on the premises in a capacity (whether paid or unpaid) which—

(i) authorises the person to sell alcohol, or

(ii) in relation to any offence under this Part of allowing something to be done, authorises the person to prevent the doing of the thing.

Part 9 — Miscellaneous and general

Excluded and exempt premises

Excluded premises

123

(1) No premises licence or occasional licence has effect to authorise the sale of alcohol on excluded premises.

(2) For the purposes of this Act, “excluded premises” means—

(a) premises on land—

(i) acquired or appropriated by a special roads authority, and

(ii) for the time being used,

for the provision of facilities to be used in connection with the use of a special road provided for the use of traffic of class 1 (with or without other classes), and

(b) subject to subsection (5), premises used as a garage or which form part of premises which are so used.

(3) For the purposes of subsection (2)(a)—

(a) “special road” and “special roads authority” have the same meanings as in the Roads (Scotland) Act 1984 (c. 54), and

(b) “class 1” means class 1 in Schedule 3 to that Act, as varied from time to time by an order under section 8 of that Act, but, if that Schedule is amended by such an order so as to add to it a further class of traffic, the order may adapt the reference in this section to traffic of class 1 so as to take account of the additional class.

(4) For the purposes of subsection (2)(b), premises are used as a garage if they are used for one or more of the following—

(a) the sale by retail of petrol or derv,

(b) the sale of motor vehicles, or

(5) Despite subsection (2)(b), premises used for the sale by retail of petrol or derv or which form part of premises so used are not excluded premises if persons resident in the locality in which the premises are situated are, or are likely to become, reliant to a significant extent on the premises as the principal source of—

(a) petrol or derv, or

(b) groceries (where the premises are, or are to be, used also for the sale by retail of groceries).

(6) The Scottish Ministers may by order amend the definition of “excluded premises” in subsection (2) so as to include or exclude premises of such description as may be specified in the order.

Exempt premises

124

(1) Each of the following are exempt premises for the purposes of this Act—

(a) an examination station at an airport designated for the purposes of this section in an order made by the Scottish Ministers,

(b) an approved wharf at a port or hoverport so designated,

(d) a vessel while engaged on—

(i) an international journey, or

(ii) a journey (other than an international journey) forming part of a ferry service, and

(e) premises which are occupied (whether indefinitely or temporarily) for the purposes of the armed forces of the Crown, except while being used for other purposes.

(2) The Scottish Ministers may make an order under subsection (1) designating an airport, port or hoverport for the purposes of this section only if it appears to them to be one at which there is a substantial amount of international passenger traffic.

(3) For the purpose of subsection (1), the period during which an aircraft, hovercraft, railway vehicle or vessel is engaged in a journey includes—

(a) any period ending with its departure when preparations are being made for the journey, and

(b) any period after its arrival at its destination when it continues to be occupied by those (or any of those) who made the journey (or any part of it).

(4) In this section—

“approved wharf” has the meaning given in section 20A of the Customs and Excise Management Act 1979 (c. 2),

“examination station” has the meaning given in section 22A of that Act,

“ferry service” means a service the principal purpose of which is the transport of passengers or goods over water,

“international journey” means a journey with—a point of departure,a destination, orat least one port of call,outside the United Kingdom, and includes any part of such a journey.

Special provision for certain clubs

Special provisions for certain clubs

125

(1) The provisions of this Act mentioned in subsection (2) do not apply in relation to premises which are used wholly or mainly for the purposes of any club of such description as may be prescribed.

(2) Those provisions are—

(a) section 7 (assessments of overprovision),

(b) section 20(4)(g) (requirement for operating plan to contain information as to the premises manager),

(d) section 26(2)(a)(ii) (requirement for name and address of premises manager to be specified in premises licence),

(e) section 30(5)(d) (ground of refusal of premises licence variation application relating to overprovision),

(f) in schedule 3—

(i) paragraph 4 (requirement for there to be a premises manager for licensed premises), and

(ii) paragraph 5 (requirement for sales of alcohol under premises licence to be authorised by a personal licence holder), and

(g) in schedule 4, paragraph 4 (requirement for sales of alcohol under certain occasional licences to be authorised by a personal licence holder).

(3) Different descriptions of clubs may be prescribed under subsection (1) in relation to different provisions specified in subsection (2).

(4) The Scottish Ministers may by regulations provide for this Act to apply in relation to—

(a) clubs of such descriptions as may be prescribed in the regulations, or

(b) premises used wholly or mainly for the purposes of such clubs,

subject to such further modifications as may be so prescribed.

(5) Regulations under subsection (1) or (4) may prescribe a description of club by reference to—

(a) requirements as to the constitution of the club, including, in particular, requirements as to—

(i) membership of the club, and

(ii) the rules of the club, and

(b) such other factors as the Scottish Ministers consider appropriate.

Vessels, vehicles and moveable structures

126

(1) A vessel which is not permanently moored or berthed is to be treated for the purposes of this Act as premises situated in the place where it is usually moored or berthed.

(2) Where a vehicle or moveable structure which is not permanently situated in any place is, or is to be, used for the sale of alcohol while parked at or set in any place—

(a) it is to be treated for the purposes of this Act as premises situated at that place, and

(b) each such place at which it is, or is to be, so used is to be treated as separate premises.

(3) The following provisions of Part 3 (which relate to the provision of certificates as to planning, building standards and food hygiene and to notifications of applications) do not apply in relation to premises (other than exempt premises) consisting of a vessel, namely—

(a) section 20(2)(b)(iii),

(b) section 21(1)(a) and (e),

(d) section 45(10)(a),

(e) section 46(2)(d), and

(f) section 50.

(4) This Act applies in relation to premises consisting of a vehicle or other moveable structure which is, or is to be, used for the sale of alcohol while not parked or permanently situated in any place (referred to in this section as “moving premises”) subject to the modifications in subsections (5) to (9).

(5) Section 18 does not apply and instead, in Part 3 and this section, “appropriate Licensing Board” means in relation to moving premises or a premises licence or occasional licence issued in respect of such premises—

(a) the Licensing Board in whose area the premises are used or to be used for the sale of alcohol, or

(b) where the premises are used or to be used in the area of more than one Licensing Board—

(i) the Board in whose area they are used or to be used to the greater or greatest extent, or

(ii) if neither or none of those Boards falls within sub-paragraph (i), such of those Boards as is, in the application for a premises licence or, as the case may be, occasional licence in respect of the premises, nominated as the appropriate Licensing Board in respect of the premises.

(6) The following provisions of Part 3 do not apply in relation to moving premises, namely—

(a) section 20(2)(b)(iii),

(b) section 21(1)(a), (b), and (e),

(d) section 45(10)(a),

(e) section 46(2)(d), and

(f) section 50.

(7) Section 21(1) applies in relation to moving premises as if for paragraph (c) there were substituted—

(c) the relevant council,

(8) References to the locality in which premises are situated are, in relation to moving premises, to be taken as references to the area of the appropriate Licensing Board.

(9) For the purposes of Part 4, moving premises are to be treated as premises situated within the area of the appropriate Licensing Board.

(10) The Scottish Ministers may by regulations provide for this Act to apply in relation to vessels, vehicles and moveable structures subject to such further modifications as they consider necessary or expedient.

Power to prohibit sale of alcohol on trains

127

(1) A sheriff may—

(a) on the application of a senior police officer, and

(b) if satisfied that it is necessary to do so to prevent disorder,

make an order under subsection (2).

(2) That is an order prohibiting, during such period as may be specified in the order, the sale of alcohol on any railway vehicle—

(a) at such station or stations within the sheriff's sheriffdom as may be so specified, or

(b) whilst travelling between such stations as may be so specified, at least one of which is in that sheriffdom.

(3) An order under subsection (2) has no effect in relation to any railway vehicle unless a copy of it has been given by a senior police officer to the train operator (or each train operator) responsible for the vehicle.

(4) A person who ...—

(a) sells or attempts to sell alcohol in breach of an order under subsection (2), or

(b) allows the sale of alcohol in breach of such an order,

commits an offence.

(5) A person guilty of an offence under subsection (4) is liable on summary conviction to—

(a) a fine not exceeding £20,000,

(b) imprisonment for a term not exceeding 3 months, or

(6) In this section—

“station” has the meaning given in section 83 of the Railways Act 1993, and

“train operator” means a person authorised by a licence under section 8 of that Act to operate railway assets (within the meaning of section 6 of that Act).

Power to prohibit sale of alcohol on ferries

128

(1) This section applies to any vessel which is exempt premises by virtue of section 124(1)(d)(ii) (vessels engaged in ferry services).

(2) A sheriff may—

(a) on the application of a senior police officer, and

(b) if satisfied that it is necessary to do so to prevent disorder,

make an order under subsection (3).

(3) That is an order prohibiting, during such period as may be specified, the sale of alcohol on any vessel to which this section applies while engaged on—

(a) any journey to or from a specified place within the sheriff's sheriffdom, or

(b) a specified journey to or from such a place.

(4) An order under subsection (3) has no effect in relation to any vessel unless a copy of it has been given by a senior police officer to the operator of the vessel.

(5) A person who ...—

(a) sells or attempts to sell alcohol in breach of an order under subsection (3), or

(b) allows the sale of alcohol in breach of such an order,

commits an offence.

(6) A person guilty of an offence under subsection (5) is liable on summary conviction to—

(a) a fine not exceeding £20,000,

(b) imprisonment for a term not exceeding 3 months, or

(7) Subsection (3) of section 124, so far as applying to a vessel, applies for the purposes of subsection (3) of this section as it applies for the purpose of subsection (1) of that section.

(8) In this section, “specified” means, in relation to an order under subsection (3), specified in the order.

Relevant and foreign offences

Relevant offences and foreign offences

129

(1) In this Act, “relevant offence” means—

(a) such offence, or

(b) an offence of such description,

as may be prescribed.

(2) In this Act, “foreign offence” means any offence—

(a) under the law of any place other than Scotland, and

(b) which is similar in nature to any relevant offence.

(3) Regulations under subsection (1) may provide, in relation to any offence or description of offence prescribed in them, that a person is to be treated, for the purposes of such provisions of this Act as may be specified in the regulations, as having been convicted of the offence only if the person—

(a) accumulates such number of separate convictions for the offence, or

(b) is convicted of committing the offence on such number of separate occasions,

as may be so specified.

(4) For the purposes of this Act, a conviction for a relevant offence or a foreign offence is to be disregarded if it is spent for the purposes of the Rehabilitation of Offenders Act 1974 (c. 53).

(5) For the purposes of the provisions of this Act specified in subsection (6), section 247(1) and (2) of the Criminal Procedure (Scotland) Act 1995 (c.46) (convictions deemed not to be convictions where offender placed on probation or discharged absolutely) does not apply to a conviction for a relevant offence.

(6) Those provisions are—

(a) section 21(4),

(b) section 23(6),

(d) section 33(6),

(e) sections 41 to 44,

(f) section 73(3),

(g) section 75,

(h) sections 80 to 83,

(i) section 89(4) and (5),

(j) subsection (3) of this section, and

(k) section 130.

Effect of appeal against conviction for relevant or foreign offence

130

(1) The fact that any conviction of any person for a relevant offence or foreign offence is subject to appeal does not affect the taking of any action by a Licensing Board which the Board is entitled or required to take in connection with the conviction by virtue of any provision of this Act.

(2) The Licensing Board may, however, postpone the taking of the action for such period as the Board considers appropriate pending the appeal.

(3) Where the conviction is overturned on appeal—

(a) any action taken by the Licensing Board in reliance on the conviction is to be treated as having no effect, and

(b) accordingly, the Licensing Board must take such steps as are necessary to return any applicant or licence holder adversely affected by the action to the position the applicant or licence holder would have been in had the action not been taken.

(4) A conviction is subject to appeal for the purposes of subsection (1) if—

(a) the period during which an appeal may be taken against the conviction has not yet expired, or

(b) an appeal is taken against the conviction and the appeal has not yet been determined.

Appeals

131

(1) A decision of a Licensing Board specified in the left-hand column of schedule 5 may be appealed by the person specified in the right-hand column of that schedule.

(2) An appeal under this section is to be made ... to—

(a) where the decision appealed is specified in Part 1 of schedule 5, the sheriff principal, or

(b) where the decision appealed is specified in Part 2 of that schedule, the sheriff,

of the appropriate sheriffdom.

(3) The grounds on which a Licensing Board's decision may be appealed under this section are—

(a) that, in reaching the decision, the Licensing Board—

(i) erred in law,

(ii) based their decision on an incorrect material fact,

(iii) acted contrary to natural justice, or

(iv) exercised their discretion in an unreasonable manner, or

(b) where the decision is to take any of the steps mentioned in subsection (4), that the step taken is disproportionate in all the circumstances.

(4) Those steps are—

(a) at a review hearing in respect of a premise licence—

(i) issuing a written warning to the licence holder,

(ii) revoking or suspending the licence, or

(iii) making a variation of the licence, or

(b) making an order revoking, suspending or endorsing a personal licence.

(5) Where the sheriff principal or, as the case may be, sheriff upholds an appeal against a Licensing Board's decision under this section, the sheriff principal or sheriff may—

(a) remit the case back to the Licensing Board for reconsideration of the decision,

(b) reverse the decision, or

(c) make, in substitution for the decision, such other decision as the sheriff principal or sheriff considers appropriate, being a decision of such nature as the Licensing Board could have made.

(6) In this section, “the appropriate sheriffdom” means the sheriffdom in which the principal office of the Licensing Board whose decision is being appealed is situated.

Appeals: supplementary provision

132

(1) A Licensing Board whose decision is appealed under section 131 may be a party to the appeal.

(2) In considering the appeal, the sheriff principal or, as the case may be, sheriff may hear evidence.

(3) On determining the appeal, the sheriff principal or sheriff may make such ancillary order (including an order as to the expenses of the appeal) as the sheriff principal or sheriff thinks fit.

(4) A sheriff principal may authorise, whether generally or specifically, any other sheriff of the sheriff principal's sheriffdom to consider and determine an appeal made to the sheriff principal under section 131(2)(a).

(5) In this section and section 131, references to a sheriff principal include references to any sheriff authorised under subsection (4).

(6) Any party to an appeal under section 131 may appeal to the Court of Session on a point of law against the sheriff principal's or sheriff's decision on the appeal.

(7) A decision of a Licensing Board which is appealed under section 131 continues to have effect despite the appeal, subject to subsection (8).

(8) Where an appeal is taken against a decision of a Licensing Board to suspend or revoke a premises licence, the sheriff principal may—

(a) on the application of the appellant, and

(b) if satisfied on the balance of convenience that it is appropriate to do so,

recall the suspension or revocation pending determination of the appeal.

(9) Further provision as to the procedure in any appeal under section 131, including in particular provision as to the times by which such an appeal is to be made or determined, may be prescribed by Act of Sederunt.

Procedures, forms etc.

Hearings

133

(1) Where a Licensing Board is to hold a hearing under any provision of this Act, the hearing must be held at a meeting of the Board.

(2) The Scottish Ministers may by regulations make provision as to the procedure to be followed at or in connection with any hearing to be held by a Licensing Board under this Act.

(3) Regulations under subsection (2) may, in particular, make provision—

(a) for notice of the hearing to be given to such persons as may be prescribed in the regulations,

(b) about the rules of evidence which are to apply for the purposes of the hearing,

(d) as to the times by which any step in the procedure must be taken, and

(e) as to liability for expenses.

Form etc. of applications, proposals, and notices

134

(1) The Scottish Ministers may by regulations prescribe—

(a) the form of any application, proposal, notice or other communication under this Act,

(b) the manner in which it is to be made or given,

(d) requirements as to the publicising of the making or giving of the application, proposal, notice or other communication,

(e) the information to be contained in it (in addition to any required to be contained in it by virtue of any other provision of this Act), and

(f) the documents which are to accompany it (in addition to any required to accompany it by virtue of any other provision this Act).

(2) Regulations under subsection (1) may provide that any application, proposal, notice or other communication made or given under this Act may be treated as not made or given if any requirement prescribed in the regulations in relation to it is not complied with.

Power to relieve failure to comply with rules and other requirements

135

(1) A Licensing Board may relieve any applicant or other party to proceedings before the Board of any failure to comply with any procedural provision if—

(a) the failure is due to mistake, oversight or other excusable cause, and

(b) the Board considers it appropriate in all the circumstance to relieve the failure.

(2) Where a Board exercises the power under subsection (1), the Board may make such order as appears necessary or expedient to enable the proceedings to continue as if the failure had not occurred.

(3) In subsection (1), “procedural provision” means—

(a) any requirement of regulations under—

(i) section 133(2),

(ii) section 134(1), or

(iii) paragraph 12(4) of schedule 1,

(b) any requirement of rules under paragraph 12(5) of that schedule, and

(c) any other requirement imposed by virtue of this Act as respects the procedure to be followed in connection with applications made to, or other proceedings before, a Licensing Board.

Fees

136

(1) The Scottish Ministers may by regulations make provision for the charging of fees by Licensing Boards—

(a) in respect of applications under this Act, and

(b) otherwise in respect of the performance of functions by Licensing Boards, councils and Licensing Standards Officers under this Act.

(2) Regulations under subsection (1) may, in particular—

(a) specify fees or provide for them to be determined by reference to such factors as may be specified in or determined under the regulations,

(b) provide for annual or other recurring fees,

(c) provide for the remission or repayment of fees in such circumstances as may be specified in or determined under the regulations.

(3) Before making any regulations under subsection (1) (other than regulations consolidating other regulations), the Scottish Ministers must consult—

(a) such body or bodies as appear to them to be representative of the interests of—

(i) Licensing Boards,

(ii) councils, and

(iii) those likely to be affected by the regulations, and

(b) such other persons (if any) as they think appropriate.

(4) Where regulations under subsection (1) provide for a fee to be charged in respect of any application made to a Licensing Board under this Act, the Board need not consider the application unless and until the fee is paid.

(5) Any fee chargeable by a Licensing Board under any regulations made under subsection (1) is to be paid to the clerk of the Board.

(6) The clerk of a Licensing Board must pay any sums received under subsection (5) to the relevant council.

Miscellaneous

Inspection of premises before grant of licence etc.

137

(1) In this section, “relevant proposal or application” means—

(a) a premises licence application,

(b) a premises licence variation application,

(d) an application under section 47(2) for a temporary premises licence,

(e) an occasional licence application, or

(f) an extended hours application.

(2) Any of the persons specified in subsection (3) may, at any reasonable time before the determination of a relevant proposal or application, enter the premises to which the proposal or application relates for the purposes of assessing—

(a) in the case of an application such as is mentioned in paragraph (a), (b), (d), (e) or (f) of subsection (1), the likely effect of the grant of the application on the licensing objectives, or

(b) in the case of a proposal or application such as is mentioned in paragraph (c) of that subsection, the effect which the selling of alcohol in accordance with the premises licence is having on those objectives.

(3) The persons referred to in subsection (2) are—

(a) a constable, and

(b) a Licensing Standards Officer for the council area in which the premises are situated.

(4) A person exercising the power conferred by subsection (2) may if necessary use reasonable force.

(5) A person who intentionally obstructs a person exercising the power conferred by subsection (2) commits an offence.

(6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Police powers of entry

138

(1) A constable may at any time enter and inspect any licensed premises.

(2) A constable may—

(a) if the condition in subsection (3) is satisfied, and

(b) subject to subsection (4),

at any time enter and inspect any premises (other than licensed premises) on which food or drink is sold for consumption on the premises.

(3) The condition referred to in subsection (2)(a) is that the constable has reasonable grounds for believing that alcohol is being sold on the premises in breach of section 1(1).

(4) A constable below the rank of inspector may exercise the power conferred by subsection (2) only—

(a) if the constable has obtained written authority to do so from a justice of the peace or a constable of or above the rank of inspector,

(b) within the period of 8 days beginning with the date on which such authority is obtained, and

(5) A person who intentionally obstructs a constable exercising a power conferred by this section commits an offence.

(6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Remote sales of alcohol

139

(1) This section applies where, in connection with any sale of alcohol, the premises from which the alcohol is despatched for delivery in pursuance of the sale is not the same as those where the order for the alcohol is taken.

(2) Where the premises from which the alcohol is despatched are in Scotland, the sale of the alcohol is, for the purposes of this Act, to be treated as taking place on those premises.

(3) The Scottish Ministers may by regulations make such provision as they consider appropriate for the purpose of regulating the taking of orders in Scotland for sales of alcohol in circumstances where—

(a) the premises from which the alcohol is despatched for delivery in pursuance of the sales are not in Scotland, but

(b) the place to which the alcohol is delivered is in Scotland.

(4) Regulations under subsection (3) may, in particular—

(a) modify any provision of this Act,

(b) apply any such provision with modifications, or

Presumption as to liquid contents of containers

140

(1) This section applies for the purpose of any trial in proceedings for an alleged offence under any provision of this Act.

(2) Where—

(a) liquid is found in a container (whether open or sealed), and

(b) there is on the container a description of the liquid contents of the container,

the liquid found is to be presumed to be liquid of that description.

(3) Where an open container is found which—

(a) contains—

(i) no liquid, or

(ii) an amount of liquid insufficient to allow analysis of it,

(b) was sealed at the time it was sold or supplied, and

the container is to be presumed to have contained, at the time it was sold or supplied, liquid of that description.

(4) At the trial, any party to the proceedings may rebut the presumption mentioned in subsection (2) or (3) by proving that, at the time of its sale or supply, the liquid in the container was not of the description on the container.

(5) However, a party may lead evidence for the purpose of rebutting the presumption only if the party has, not less than 7 days before the date of the trial, given notice of the intention to do so to the other parties.

Offences by bodies corporate etc.

141

(1) Where—

(a) an offence under this Act has been committed by—

(i) a body corporate,

(ii) a Scottish partnership, or

(iii) an unincorporated association other than a Scottish partnership, and

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant person, or

(ii) a person purporting to act in the capacity of a relevant person,

that person, as well as the body corporate, partnership or, as the case may be, unincorporated association, is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In subsection (1), “relevant person” means—

(a) in relation to a body corporate other than a council, a director, manager, secretary, member or other similar officer of the body,

(b) in relation to a council, an officer or member of the council,

(d) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

General

Guidance

142

(1) The Scottish Ministers may issue guidance to Licensing Boards as to the exercise of their functions under this Act.

(2) The Scottish Ministers may modify any guidance issued by them under subsection (1).

(3) Each Licensing Board must, in the exercise of their functions under this Act, have regard to any guidance issued to them under subsection (1).

(4) Where a Licensing Board decides not to follow any guidance issued under subsection (1), the Board must give the Scottish Ministers notice of the decision together with a statement of the reasons for it.

(5) The first guidance to Licensing Boards under subsection (1) is not to be issued by the Scottish Ministers unless a draft of the guidance has been laid before, and approved by resolution of, the Scottish Parliament.

(6) The Scottish Ministers must lay any subsequent guidance issued by them under subsection (1) before the Parliament.

Crown application

143

(1) This Act binds the Crown.

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