Under the old licensing laws it may be remembered that the justices had the right to grant licence to those whom the bench considered "fit and proper" to hold a licence.
That gave the police, in particular, the opportunity to make general observations on the applicant or applicants sufficient to mark the card of the magistrates, in general terms, on whether they would make good licensees.
Some clerks objected to the complete freedom of expression this gave to police officers.
They wanted the police to comply with the licensing laws and only voice their comments within the context of a formal objection. Mere representations, they pointed out, had no place in the law.
Of course, all that has changed. Now, representations are allowed, but only within the strict terms of the licensing objectives. Comments on the merits or otherwise of the actual applicants for licences have to be restricted. If an individual meets the terms and conditions of the Licensing Act with regard to qualifications and a "clean" record, then he or she is entitled to a personal licence and can become a designated premises supervisor.
The evolving situation in Scotland, however, raises once again the question of police involvement in the licensing process. They may gain the right to object on any of the five licensing objectives, not just in respect of crime prevention.
This will not, of course, reintroduce the general character observations that were a feature of the previous regime in England and Wales. It in fact mirrors the current situation south of the border, because the police can and do object on grounds other than crime prevention: public safety being a prime example.
In fact, police powers of objection under the original Licensing (Scotland) Act were seriously restricted — some might say unnecessarily so.
It was only where they had evidence of "serious organised crime" that they could object to the grant of a licence.
While it may be true that public health is not an area in which they have expertise, a general duty to prevent crime and disorder, together with both public safety and the prevention of public nuisance would seem to be valid areas where they could have an input to the licensing discussion.
It is where matters are brought up that may be irrelevant to those objectives or that involve the police expressing their own opinions on the merits of individuals when the licensing board should turn a blind eye and a deaf ear.
Q&A
Buying alcohol for under 18s
Q. I am a little confused over the question of a father buying alcohol in my pub for his family who are having a meal. At a local meeting recently, the police liaison officer said that buying alcohol on behalf of under-18s was a strict offence and that the adult could be prosecuted. But if a father buys wine or beer for his teenagers, where does this leave me?
A. There is confusion on this issue, but the offence the officer was mentioning concerns adult buying on behalf of youngsters — ie, accepting money from them and going in to a bar or off-licence to buy alcohol. The father buying drinks from you is committing no offence if he subsequently gives a drink to one of his children over 16 at a meal, as long as it is beer, cider or wine. That is not an agency purchase — he is an adult buying alcohol from you and giving it to over-16s to consume with a meal.
Clearly, you've got to ascertain that the young people in question are over the age of 16, as it is an offence knowingly to allow the consumption by someone under 16 in those circumstances. However, if a child takes a sip of an adult's drink, which is an action you were not in a position to prevent, that will not be sufficient to render you liable to prosecution. In actual fact, prosecutions for this type of offence are exceedingly rare in any event.
Club committee must be elected
Q. Under the old law we had a wine committee at this club responsible for the purchase and supply of alcoholic drinks at the bar. Is this still necessary?
A. This is an interesting point. While a wines committee as such is no longer required and is not mentioned in any form in the Licensing Act 2003, it is a fact that the Act requires the purchase and supply of alcohol to be under the control of a committee whose members are elected by the club.
This means that if your general committee has elected and non-elected members, there needs to be a sub-committee consisting of only properly-elected members to manage the bar supplies.
Where the secretary or chairman are nominated or appointed positions, this means that they cannot sit on the committee responsible for the bar supplies, although clearly the secretary may have some duties with regard to bar accounts or liaison with the steward.
It is perfectly in order for the club steward to be made responsible for ordering stock from suppliers, but ultimately it is an elected committee that has overall control for alcohol purchases on behalf of the club.
How many personal licences?
Q. I am thinking of putting all my staff through the BII exam so that they get personal licences. How does this affect my legal responsibilities, as I am the DPS?
A. Although this is an excellent idea, it is not a legal requirement that all serving staff have personal licences. Some licensing authorities have suggested it as a special condition, but it should not be volunteered, because it might mean those failing the examination would have to be dismissed and might claim unfair dismissal as a result.
There is, of course, legally no limit to the number of personal licence holders who are working in any one set of premises, as they are not directly connected to the licence. The only person actually named on the licence is the designated premises supervisor (DPS) who has overall responsibility. Those working for you actually selling alcohol may do so whether they hold a personal licence or not, as long as you have delegated sales responsibility to them if for any reason you are absent from the premises. However, in those circumstances you still retain ultimate responsibility.