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Off-sales in the Community

CHAPTER FOUR: MANAGEMENT AND ENFORCEMENT MECHANISMS

Nicholson on Management and Enforcement

4.1 As part of its work, the Nicholson Committee commissioned research from Reid Howie Associates (a) to review existing literature relating to initiatives aimed at tackling alcohol-related crime and disorder; and (b) to carry out an audit of existing initiatives in Scotland. The research report addressed the question of illegally purchased alcohol and concluded that grocery stores were more prepared to sell to minors than other types of outlet. On the other hand, the report noted that factors most associated with lower level of sales to minors were being part of a chain, being in membership of a trade association and having a high proportion of income from alcohol sales.

4.2 The Public Order Sub Group of the Nicholson Committee pointed out that most independent off-sales operated in a responsible manner and would never knowingly supply alcohol illegally. Nonetheless the police had little doubt that proprietors and their staff sold alcohol to "under-agers" (or persons acting as their agents) knowingly, willingly and with a complete disregard for the consequences. The Sub Group felt that the motive for this, on the part of the proprietors, was probably financial, while the staff, who were often local youngsters themselves, might be doing a favour for their friends and neighbours.

"Very often the stock carried by 'suspect' establishments and the way it is marketed is quite clearly aimed at youngsters with cheap, fortified wines, strong cider and 'alcopops' being very much to the fore" (para 5.16)

4.3 The Sub Group considered why dedicated off-sales and licensed grocers were most frequently used by young people to obtain alcohol. They concluded that

- it was less likely that family grocers would have formal training in place to prevent illegal sales; and
- a community shopkeeper may be much more vulnerable to pressure, possibly including threats of violence, exerted by groups of youths wishing to obtain alcohol.

4.4 The Sub Group also examined reasons why unscrupulous off-licence operators felt they could sell to under age persons. Certainly the level of enforcement activity, in terms of successful prosecutions - 905 licensing offences in 2001 compared with only 100 convictions - ( Scottish Executive Statistical Bulletin: Criminal Justice Series, Liquor Licensing in Scotland, 1998-2002, published May 2003) - does not reflect the true scale of the problem. This may be because of police priorities, the complexity and resource intensive nature of collecting evidence, delays in getting a case to court, or the small level of fines with no deterrent value when set against the potential profits to be made.

4.5 The Scottish Licensed Trade Association (SLTA) is concerned at this situation " We believe that to hold a liquor licence of any type is a privilege and with that privilege goes a responsibility, not only to our customers but to society generally and to the rest of the trade" (SLTA Oral Evidence to Nicholson)

4.6 We address these issues later in this chapter. We do endorse, however, the views of the Association of Chief Police Officers in Scotland (ACPOS) that it is important that those who take responsibility for the management of licensed premises are socially aware and have knowledge of the relevant legislation relating to their employment. Members of the public have the right to expect a professional approach in the management of premises; they have the right to a safe environment within and around those premises; and they have the right to expect licence holders to assist in the prevention and detection of crime. (ACPOS Oral Evidence to Nicholson)

4.7 We are also aware that there is a particular issue faced by off-sales licence holders of an ethnic minority background. Many Asian businesses feel that they are more likely to suffer racial harassment than other small shopkeepers. In central Scotland, we noted, from information provided by RAHMAS (the monitoring agency for racial attacks and harassment multi-agency strategy) that 50% of all racial attacks and harassment were taking place at shops and businesses. As almost all their shops are small family businesses employing only family members, they have fewer resources to deal with anti-social behaviour in and around their premises. In general many members of the Asian community feel that police attitudes towards their complaints, on the whole, are unsympathetic. However the police do not accept that this is a wholly accurate representation of the situation. Indeed, it is accepted by all concerned that the police service has invested heavily in this area with a view to improving officers' awareness and skills in relation to diversity issues.

4.8 We have been unable, in the time available to us, to address this issue in detail but we would see a place for all those involved in enforcement concerning licensed premises to look at the problems faced by those because of their ethnicity and consider what work could be undertaken to tackle what they clearly see as a very real problem.

4.9 In looking at the problems which are perceived as often being associated with off-sales, we discussed a wide range of management and enforcement mechanisms including those already in use, those suggested in the Nicholson Report and those proposed in the Anti-Social Behaviour Bill.

4.10 In this chapter we have considered methods to curb the purchase of alcohol by those under the age of 18. We have had regard to how the present powers available to the police and other agencies are used and considered what changes, if any, are necessary. Finally, we have given some thought to the Nicholson Committee's recommendation on liquor licensing standards officers and the part they would play in protecting communities.

Under-age Drinking

4.11 All members of the group have acknowledged that this is a complex problem that cannot be addressed by liquor licensing alone. At present it is not unlawful for children over the age of 5 years to consume alcohol. What the law in general prohibits is the sale or supply in licensed premises of alcohol to, or the purchase of alcohol (or attempt to purchase alcohol) by, those who are under the age of 18. The Nicholson Committee recommends that the current prohibitions on the sale or supply of alcohol to persons under the age of 18 should be retained with the exception of a person aged 16 or 17 who should be entitled in licensed premises to purchase beer or wine for consumption with a meal.

4.12 In looking to prevent those under 18 being able to purchase alcohol, the Nicholson Report also recommended the introduction of a national proof of age card which would certify that the holder is of an age when he or she is entitled to purchase or to be supplied with alcoholic liquor in licensed premises.

4.13 We noted with interest the work already taking place with the Young Scot Card, which is available to anyone between the ages of 12 and 25 and operates as a discount card with information and advice services. Of particular interest is the Dialogue Youth initiative. Dialogue Youth is a partnership established between COSLA, Young Scot and all 32 local authorities. As part of the initiative, each council localises the Young Scot Card in order that it can be used to access a range of services provided by them. Across Scotland the card will be made available, free of charge, to every young person aged 12 to 18. Several local authorities have expressed interest in working with Young Scot to extend the range to age 25, which is the generally accepted definition of a "young person". We have been pleased to hear that the card has recently been accredited by the British Retail Consortium (BRC) 'Proof of Age Standards Scheme' (PASS). This is a scheme promoted by the BRC to supply storeowners and shop workers with a reliable and accurate information method on which to base a decision on whether to allow a purchase. It is expected that within a year almost all Dialogue Youth Units will be issuing co-branded local authority/Young Scot cards bearing the PASS hologram.

4.14 Proof of age schemes are often brought into the debate on national identity cards. We are clear that the issues are similar but separate and we do not wish to enter into that debate. We offer no comment on the merits or otherwise of a national identity scheme. However, we do agree that there is a need for a mechanism to help off-sales licence holders prevent under-age purchase and the most obvious tool is a proof of age card. We therefore support the Nicholson proposal for a national proof of age card. Such a card should be issued for those aged 12 and upwards.

4.15 We also believe that to ensure the licence holder continually uses such a scheme, there needs to be a reassurance that any age verification system contains reliable, accurate information. We prefer the option of a single scheme adopted nationally. However any scheme should use a secure validation process to prevent forgery, especially by downloading from the Internet. To achieve this we would like to see any card used being kitemarked with a hologram.

Recommendation

16. We support the Nicholson recommendation for a Government-accredited national proof of age card and believe that the co-branded local authority/Young Scot card issued through Dialogue Youth would be suitable for this purpose if it could be extended up to the age of 25 in each local authority area. Ministers should consider the potential of the Dialogue Youth card. However, any card that is used for proof of age purposes should be holographic kite-marked and display the person's age.

4.16 Our discussions on proof of age cards have led us to the conclusion that such cards are most effective if they are used in conjunction with a continuous No Proof No Sale initiative. The Association of Convenience Stores has been promoting a No Proof No Sale initiative for some time in England and Wales and has worked with existing card providers including the Portman Group. In addition two Early Day Motions were tabled at Westminster during 2003 which gathered support from MPs.

4.17 A No Proof No Sale initiative is seen as a means of addressing violence and intimidation towards licence holders and their staff as well as a means to reduce under-age sales and therefore under-age drinking.

4.18 In addition, anecdotal evidence suggests that in some parts of Scotland there may already be voluntary schemes in existence which have the blessing of local authorities, the police and the trade.

4.19 In our view, it makes sense to promote consistency throughout the country and for this to be promoted at the highest level. We therefore recommend adoption of a national initiative endorsed and promoted by Scottish Ministers.

4.20 In adopting such a policy the types of proof required would need to be specified. We believe these should be a national proof of age card, a passport or the new style of photographic driving licence.

Recommendation

17. Scottish Ministers should endorse and promote a No Proof No Sale initiative for Scotland. Proof should be restricted to a single widely accepted Proof of Age card, a passport and the new style photographic driving licence.

4.21 Test purchasing has been a feature in England & Wales for several years in relation to tobacco and fireworks, but was only recently introduced in relation to alcohol by the Criminal Justice and Police Act 2001. The use of test purchasing in England & Wales is subject to strict guidelines and has involved the photographing of witnesses prior to the 'purchase' and the recording of all conversations. The intention of these measures is that the young person's testimony in court might not be required. However, the position in Scotland regarding evidence is different.

4.22 In Scotland, test purchasing is a matter for the Lord Advocate. The Lord Advocate has already authorised a carefully controlled pilot in relation to the test purchasing of tobacco products by children - the pilot is still ongoing but the results are expected by February 2004. The Lord Advocate does not wish children to give evidence in court unless it is absolutely necessary, but has said that he will look carefully at the current pilot in relation to the test purchasing of tobacco to consider whether a similar approach would work in relation to the sale of alcohol.

4.23 We understand the concerns around test purchasing, which would technically place young persons in a position of being asked to commit an offence and act as an 'agent provocateur'. There is a concern that this would not be in the best interests of the young person as they may be required to give evidence in court, with the attendant stress this entails. The possibility of subsequent intimidation and physical danger at the time of the test purchase would also require careful consideration.

4.24 While we are aware, from the Reid Howie research, that there is no evidence to suggest that test purchasing in England & Wales has impacted on the level of under-age drinking, we see an important role for the use of test purchasing as a way to measure the compliance of licence holders with the legislation. Such 'integrity testing' allows those bodies responsible for the licensing system to gain a picture of the ease with which under-age purchasing can take place within a given area. We acknowledge the present difficulties with regard to prosecution but believe that the information gathered can be used positively in encouraging greater diligence.

4.25 The legal position regarding the purchase of alcohol is different from that relating to the purchase of tobacco. It is not a criminal offence on the part of an under-age person (aged 16 in the case of tobacco) to purchase tobacco. The offence is committed by the person selling the tobacco. In the case of alcohol, the offence is committed by both the seller and the young person (aged under 18 in this case). The under-age person would also be committing an offence if they attempted to purchase alcohol. If the Lord Advocate is disposed to look favourably on the use of test purchasing for alcohol this could be achieved either through a change in primary legislation or by the Lord Advocate issuing a policy directive indicating that he would not prosecute under-18 year olds who were involved in test purchasing. We therefore await the results of the Lord Advocate's consideration of this matter with interest.

4.26 We also believe that for such a system to be fair there needs to be an environment clearly to support the licence holder in making the decision to sell. Any more widespread introduction of test purchasing, therefore, needs to be accompanied by measures such as proof of age cards.

Recommendation

18. We are attracted to the idea of test purchasing within an environment which offers support to the licence holder (such as proof of age cards). However, we recognise that this is a matter for the Lord Advocate and we recommend that, in considering the results of the current pilot in relation to the test purchasing of tobacco products, he should consider whether a similar approach would work in relation to the sale of alcohol.

Police Powers

4.27 The 1976 Act permits the police at any time to enter and inspect any licensed premises other than premises holding an off-sales licence. The police may only enter premises with an off-sales licence if they have reasonable grounds for believing that an offence has been or is being committed on those premises. We are aware that of those responses to the consultation paper on anti-social behaviour that addressed this question, all supported the Nicholson recommendation that this distinction should not continue and that the police should have the same access to all licensed premises.

4.28 Under the 1976 Act, the police can ask a licensing board, in the interests of public order or safety, for a temporary Restriction Order, seeking the closure of individual premises or a group of licensed premises. In addition, boards also have the power, when dealing with a complaint of public nuisance or disorder, to make afternoon, evening or Sunday Restriction Orders, limiting the permitted opening hours. Such orders are not applicable to off-sales licensed premises or off-sale parts of other licensed premises. The police in practice have been able to achieve rapid closure of premises in serious incidents of disorder under common law powers. However, we support the Nicholson recommendation that in the interests of public safety, the police powers of closure should be updated.

Recommendation

19. We agree that the police should have the same access to all licensed premises. We also agree that the police powers of closure should be updated.

4.29 For England & Wales the new Licensing Act 2003 has added an offence of knowingly to keep or allow to be kept, on relevant premises, any unlawfully imported goods or goods on which duty has not been paid. The categories of those who may commit the offence are:

• any person who works at the premises in a capacity that gives them the authority to prevent those goods from being kept on the premises;
• a premises licence holder or designated premises supervisor;
• an officer or member of a club who is present at the time when the goods are kept on the premises and who has authority to prevent them being so kept; and
• a premises user who has given a temporary event notice in respect of those premises.

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. We believe the inclusion of such a clause in Scotland's licensing legislation would strengthen the ability to deal with an illegal source of alcohol. This may then have a beneficial impact on associated problems such as under-age drinking.

Recommendation

20. The clause concerning the 'Keeping of smuggled goods' in the Licensing Act 2003 is worthy of inclusion in a licensing bill for Scotland.

Anti-social Behaviour

4.30 The Licensed Premises (Exclusion of Certain Persons) Act 1980 provides that courts may make an order prohibiting those found guilty of violence or threatening violence on licensed premises from entering those premises or any other specified premises for a specified period. The order may be made for a minimum of 3 months and not more than 2 years. The purpose of the Act is both to protect the licence holder, their staff and customers from future violence from the same source and to deter potential troublemakers.

4.31 Off-licences are currently exempt from the Act. We agree with the Nicholson recommendation that exclusion orders should be extended to all licensed premises including off-sales. In addition, we recommend a further amendment to the 1980 Act to allow for exclusion in respect of disorder in ' or associated with' a licensed premises. This would allow action to be taken in instances where the anti-social behaviour takes place at the entrance to or immediately outside a licensed premises as customers enter or leave. It could be particularly effective in targeting the perception by some communities that off-licences can become a focus for anti-social behaviour, much of which may take place outside the premises.

4.32 We also considered that the existence of the present power to make exclusion orders is not as well known as it might be and the existing powers should be brought to the attention of prosecutors, judges and justices. This could be done by the provision of guidance or training.

Recommendation

21. The Licensed Premises (Exclusion of Certain Persons) Act 1980 should be amended to allow exclusion for disorder in 'or associated with' a licensed premises. As a stop gap measure, appropriate guidance or training should be provided to prosecutors, judges and justices to raise awareness of the existence of the powers to make such orders.

4.33 In considering the position of the community store we noted that the retailer/licence holder and their staff frequently face threatening and abusive behaviour. Such circumstances are making it difficult to recruit and maintain staff, consequently threatening the viability of stores. We understand that such behaviour can often follow a refusal to sell alcohol. We are therefore keen to see the use of Anti-Social Behaviour Orders (ASBOs) as one of a number of measures to tackle such problems.

4.34 ASBOs were introduced by the Crime and Disorder Act 1998. They are preventative orders designed to protect individuals from further anti-social behaviour that causes or is likely to cause alarm or distress. Breach of an order is a criminal offence punishable by a fine or imprisonment (up to 5 years on indictment). Local authorities and registered social landlords, in consultation with the police, can apply for ASBOs. Interim orders were introduced in 2003 and provide more immediate protection to individuals and families from anti-social behaviour.

4.35 We have noted that the Anti-Social Behaviour (Scotland) Bill will extend ASBOs to 12-15 year olds and introduce a number of reforms to improve their effectiveness including introducing a statutory power of arrest for breaching an order. To enable such orders to be effective for the licence holder it is important that they are aware of who to go to and how they can apply for such an order. We believe it is also important that the licence holder is kept informed of how any request is being progressed. In order to achieve this we feel that there is a need for a dedicated section within the local authority with the knowledge and skills to deal with applications for anti-social behaviour orders. Many local authorities have already established dedicated Anti-Social Behaviour teams mostly, but not exclusively, within their housing departments and are being encouraged to do so through Scottish Executive funding. We would similarly encourage those who have not to consider adopting this approach.

4.36 The ASB team is best placed to give guidance to licence holders on how to go about requesting the local authority to apply for an ASBO. Indeed, we feel that such teams should be asked to produce guidance for licence holders and others on this matter and, further, that they should keep the person requesting the order informed of its progress.

Recommendation

22. There is a need for a dedicated section, located within local authorities, with the knowledge and skills to deal with applications for anti-social behaviour orders. Anybody implementing the ASBO should keep the person requesting the order informed of its progress. Guidance should be made freely available to the licence holder on what is needed and how to go about applying for an ASBO.

4.37 The police already have the power under The Crime and Punishment (Scotland) Act 1997 to confiscate alcohol from anyone reasonably suspected to be under 18, whom they find in a public place. The police may also require that person to supply their name and address.

4.38 The police have similar powers to seize and dispose of alcohol from a person over 18 who has supplied or intends to supply the alcohol to a person under 18. The legislation does not require that alcohol containers be open and in effect provides police with the power to seize 'carry-outs'. Again the police officer can require that person to supply their name and address. We are aware that the police consider the 1997 Act to be one of the most effective pieces of legislation to deal with under age drinking and public disorder.

4.39 Local authorities also have the power to draw up byelaws, on the approval of Scottish Ministers, which prohibit drinking in designated public areas under the Local Government (Scotland) Act 1973. To date, 27 Councils across Scotland have such byelaws, covering more than 400 towns and villages, together with the built up areas within the cities of Glasgow, Dundee and Aberdeen.

4.40 We have been made aware of a concern that has arisen since the inception of the byelaws. For the majority of byelaws the relevant offence is to 'consume alcohol' and the charge must be proved beyond reasonable doubt and not inferred from the circumstances e.g. being in possession of a half-empty beer bottle. This means that the power only exists to seize the alcohol in the container from which it was being consumed at that specific time. It does not extend to taking possession of the 'carry-out', opened or otherwise, irrespective of any obvious intended consumption. It has been successfully argued that the charge cannot be substantiated unless the alcohol is seen being consumed. A number of police officers have commented that in practical terms the offence is therefore more difficult than it should be to prove.

4.41 South Ayrshire Council has introduced a byelaw which states: " ... any person who consumes alcoholic liquor in a designated place or is found to be in possession of an open container in a designated place shall be guilty of an offence". We consider that this is a more effective means of tackling public drinking through byelaws. We therefore recommend that it could form the template for such byelaws in future.

Recommendation

23. The Executive should consider producing a new model byelaw on public drinking, using South Ayrshire's present byelaw as a template. It should be publicised on the basis that each Council should consider whether the byelaw would be useful in their area.

4.42 We have been concerned at the number of occasions we noted in the consultation responses to the Anti-Social Behaviour Bill that there was a public perception of a lack of police enforcement or action. Additionally, the Reid Howie research shows clear evidence that high profile policing around licensed premises is associated with a reduction in crime rates. Although acknowledging the complicated task Chief Constables face in allocating resources, we would ask that they give consideration to the priority their forces give in responding to the problems generated by anti-social behaviour in the vicinity of off-sales premises.

Recommendation

24. Chief Constables should give consideration to the priority their forces give in responding to the problems generated by anti-social behaviour around off-sales premises.

Business Rates

4.43 We considered whether it would be possible to use business rates as an incentive to smaller local shops not to sell alcohol. However, on closer examination, we concluded that the economic benefits of such a proposal were unlikely to be sufficiently attractive to encourage shop owners to participate in such a scheme. We have decided, therefore, not to pursue this proposal.

Liquor Licensing Standards Officers

4.44 The Nicholson Committee recommends that licensing boards should employ persons to be known as Liquor Licensing Standards Officers (LLSOs) whose functions would be to supervise and monitor the operation of the licensing system in a licensing board's area. These officers would have a statutory right of entry to all licensed premises and their main functions would be to co-operate with the licence holder in order to assist compliance with terms and conditions attached to a licence and to report to the licensing board any persistent or serious cases of non-compliance.

4.45 We support the remit as set out in the Nicholson Report. However, we also wish to emphasise that the LLSO should have an educational role and should be engaged in mediation, for example between licence holder and the local community, to resolve issues at the lowest local level.

4.46 In effect, therefore, LLSOs would act through both compliance and enforcement programmes. We noted with interest the Nicholson Public Order Sub Group's consideration of the system in British Columbia, where the essential principle was one of voluntary compliance. Licence holders receive educational material at the time of licensing and there is ongoing communication with LLSOs through the inspection programme. If a licence holder fails to comply with the Act, or with regulations, or with the terms and conditions of the licence, the licensing authority may commence enforcement action against the licence holder.

4.47 The Nicholson Report recommended that licensing boards should employ LLSOs. However, licensing boards do not employ staff and the clerks to the boards are local government officers. In considering the relationship between the LLSO and the board, we have come to the conclusion that this should be at arm's length. The LLSO should stand in the same relationship to the board as other public service officials, such as the police, trading standards or building control officers. This would mean that LLSOs should be employees of the local authority rather than the board.

4.48 We agree with the Nicholson Report that the proposed National Licensing Forum should give consideration to the role of LLSOs and to their effective liaison with those other officers who are entitled to enter and to inspect licensed premises. In such circumstances, we believe a robust training and accreditation scheme with clear job descriptions and work remit would help establish the separation between the licensing board and the LLSOs.

4.49 To achieve this we would like to see the proposed National Licensing Forum produce a job description and specification for the role, which should be used as a national template to ensure consistency across the country. Included in the specification should be qualification requirements.

4.50 We believe consideration should be given to making diversity and racial awareness training an essential component of the training made available to LLSOs. This should help to build bridges which would ensure successful communication leading to better engagement and a mutually beneficial relationship between the LLSOs and the many licence holders of ethnic origin.

Recommendation

25. Liquor licensing standards officers (LLSOs):

• should have an educational and mediation role in addition to their monitoring role;
• should be independent of the licensing boards;
• should be employed by the local authority rather than the licensing board;
• should have a job description and specification which follows a national template produced by the proposed National Licensing Forum and which includes minimum qualifications; and
• should undertake training including diversity and racial awareness training.

Binge Drinking & Irresponsible Promotions

4.51 We share the Nicholson Committee's concern about 'binge drinking', not only because of the potentially harmful effects for health for those who engage in excessive drinking but also because it can frequently be the trigger for behaviour which is entirely undesirable and unacceptable for the community at large.

4.52 We believe that price plays a part in encouraging excessive drinking and in particular irresponsible promotions, usually accompanied by deep price discounting. We are aware of the present schemes adopted by licensing boards to discourage deep price discounting in the trade and accept that those in operation at present are not applicable to off-sales. Due to the limits of our remit and the tight reporting deadline to which we have been working, we were unable to explore this issue further. However, we wish to register our concerns about binge drinking and would ask the Scottish Executive to consider what measures it might take to address this anti-social practice and to prevent irresponsible promotions.

Recommendation

26. The Scottish Executive should consider what measures it might take to address binge drinking and prevent irresponsible promotions.

Training

4.53 We fully support the Nicholson recommendation that a personal licence applicant should possess a recognised licensing qualification and that all who work in licensed premises should be encouraged to undertake appropriate training. We believe that such qualifications and appropriate staff training play an important part in ensuring the maintenance of a responsible approach to the sale of alcohol by the licence holder and their staff.

4.54 We noted, from the report of the Nicholson Public Order Sub Group, that training courses for servers have led to "significant improvements". In British Columbia, for example, the "Serving it Right" training programme consists of two study programmes, one to be completed by the licence holder and the other by servers. The programmes aim to educate participants on their legal rights, responsibilities and liabilities and to provide techniques intended to prevent problems related to alcohol consumption. All licence holders, managers and employees must successfully complete the relevant parts of the programmes, with the licence holder being responsible for ensuring that their employees are trained. Failure to complete the programme by licence holders or employees is dealt with by way of increasing fixed penalties. These range from a one day suspension of the licence and a $1,000 fine on the first occasion to a 20 day suspension and increased fine by the third contravention.

4.55 In ensuring that the knowledge gained by such a qualification remains current we see a place for the personal licence holder to be obliged to take refresher training periodically, for example, every 5 years. Failure to undertake or complete such training should lead to the suspension of the licence.

Recommendation

27. Training should be mandatory for personal licence holders and appropriate on site training provided for all other employees with refresher training being undertaken every 5 years. Failure to undertake or complete refresher training should lead to licence suspension.

Sanctions Available To Boards

4.56 We regard the present system of sanctions as too blunt an instrument. We would like to see a graduated system of penalties introduced. We are in agreement with the Nicholson proposals that licensing boards should have available to them a range of sanctions to enable them to deal appropriately with cases where there has been a failure to comply with the terms and conditions of the licence. In determining the appropriate sanction, licensing boards should consider what is necessary in order to promote the licensing principles. The available sanctions should range between a formal warning or admonition to revocation of a licence.

4.57 As a starting point, we saw merit in the approach operated by the police in Glasgow. Here an informal warning is followed by a Yellow Card, where the licence holder receives a warning from a senior officer. If problems persist this leads to a Red Card, where information is transmitted by the police to the licensing board, who take a decision on revoking the licence. This type of graduated approach may have merit. Due to time constraints we have not been able to develop a detailed model but would recommend that the Executive explores this option.

Recommendation

28. Ministers should look to implement a graduated penalties system and any such system should come with guidance to the licensing board on its operation.

Interim Suspension

4.58 The Nicholson Committee recommended that where a sanction involving closure of a licensed premises for any period, or a reduction in authorised hours, has been imposed by a licensing board, and the premises licence holder concerned has marked an appeal against that decision, he or she should be entitled to apply to the local sheriff for interim suspension of the sanction pending disposal of the appeal. However, where interim suspension is not granted, the sanction should remain effective pending the determination of any appeal. We have assumed that the sheriff will make a decision with reference to the licensing principles.

4.59 We support the Nicholson Committee's wish to tackle those licence holders who abuse the appeals process in order to continue trading. However, we acknowledge that the loss of a licence even for a short while could be devastating to a business and to a community when it ultimately leads to the closure of a corner shop. We therefore propose that the closure of a premises would not take place until a hearing regarding the interim suspension has been held. It would however be incumbent on the licence holder to apply for such a hearing. If they did not, closure would take immediate effect.

Recommendation

29. In respect of the appeals process, as an alternative to the Nicholson recommendation which would see immediate closure prior to a hearing on interim suspension by the Sheriff Principal, the sanction should not begin until the hearing regarding the interim suspension has taken place.

Financial Implications

4.60 In considering some of the detailed implications of the proposed new licensing system recommended in the Nicholson Report, we have given some attention to the financial implications of the proposals. There are a number of areas where additional costs can be expected to arise under this new system, including the following:

• any extension of the Dialogue Youth card up to the age of 25;
• the cost of training and employing LLSOs;
• the cost of providing training to licensing board and licensing forum members;
• the cost of establishing and running the proposed National Licensing Forum.

4.61 We are not convinced that the full costs of the new system will be recovered increases in licensing fees, as recommended by the Nicholson Report. We have not had time to undertake a detailed estimate of costs but the licensed trade is very concerned at the likely size of fee increases if the costs of the new regime are to be fully recovered in this way. We therefore recommend that the Executive should undertake financial modelling to determine the extent to which costs can be recouped through licensing fees and should make provision in the local government finance settlement to reimburse councils for the additional costs they will face.

Recommendation

30. The Executive should undertake financial modelling to determine the extent to which costs can be recouped through licensing fees and what additional provision should be made in the local government finance settlement.

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