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6. Personal Licence
Background
123. This Chapter provides advice about best practice in administering the process for issuing personal licences to sell or supply alcohol. Board should note that the "fit and proper" test associated with the previous alcohol licensing regime has been abolished and the tests established by the 2005 Act are the only ones which may now be applied. Moreover, in this context, it must also be stressed that a personal licence is not a qualification that is associated with business competency. The five licensing objectives apply to consideration of applications for personal licences as to all other parts of the Act.
124. The personal licence is intended to ensure that anyone managing premises is suitably qualified to do so. In that respect the emphasis is on ensuring appropriate training, both in the applicable law and in how to deal with customers. For this reason, we expect the personal licence to become a recognised level of attainment held by those pursuing a career in the licensed trade. More detail on training is set out under the training section of this guidance.
125. The new system moves away from the moral judgement of who is a "fit and proper person" as required under the Licensing (Scotland) Act 1976. However, it is important that an effective system is in place to enable Boards to ascertain whether or not someone is a suitable person to hold a personal licence.
126. The personal licence remains in force for a period of 10 years, with the possibility of renewal for further periods of 10 years thereafter. English and Welsh personal licences are not transferable to Scotland under the new licensing system due to differences in the recognised relevant convictions and training requirements.
127. When issuing personal licences, Licensing Boards should use the unique local authority identifiers as a prefix to the numbers they issue for each personal licence. The list of prescribed identifiers which Boards must use is set out at Annex 7 to this guidance. In cases where local authorities have split their areas into separate Board areas, it would be good practice to adopt unique reference numbering for each of their respective areas to identify the Board area for which licenses are issued.
Premises manager
128. Section 18 of the Act defines the term "premises manager". Each premises must have one named premises manager, whose details will be given in the premises license. The named premises manager must be a personal licence holder. This is a mandatory licence condition for premises licences. A named premises manager cannot be the premises manager for more than one premises at a time. Each premises can have more than one personal licence holder should they wish, but only one can be designated as the premises manager. Holding a personal licence authorises that person to supervise or authorise the sale of alcohol.
129. The role of the named premises manager is an important one. The named premises manager will be responsible for the day to day running of the premises, responsible for the training and supervising of the staff and ensuring the premises is run in accordance with the requirements of the licence. The Act requires a named premises manager for each premises since this carries a greater responsibility, as the sale and supply of alcohol can have a wide impact on the wider community and on crime and anti-social behaviour. It is therefore important to have one responsible person who will require to be knowledgeable of the law and experienced in the supervision and training of staff and suitably qualified. Ultimately the designated premises manager will be held responsible by the Licensing Board.
130. Alcohol must not be sold on the premises (other than where section 54 of the Act applies) at any time when: -
- There is no named premises manager in respect of the premises (i.e. one has not been designed);
- The named premises manager does not hold a personal licence;
- The personal licence held by the named premises manager is suspended; or
- The licensing qualification held by the premises manager is not the appropriate licensing qualification in relation to the premises.
131. An important point to also stress is that the Act does not require a holder of a personal licence to be on the premises at all times when alcohol is being sold on the premises. Whilst the Act requires every sale to be "authorised" by a personal licence holder, such authorisation can be a general one. This means does not mean general authorisations being necessarily given by a person who is present on the premises when the relevant sale is made.
132. This does not, however, mean that where a personal lice hold is not actually present they are removed from all responsibility. For example, where a sale of alcohol to a child is made perhaps made, then the barperson making the sale is likely to be guilty under the provisions of section 102 of the Act. However, section 103 may also make the premises manager or other personal licence holder guilty (whether or not present on the premises at the time). It will all depend on whether the sale has been "knowingly allowed", which will depend on the facts and circumstances in any particular case.
133. Similarly, a sale of alcohol by a non-qualified person (contrary to paragraph 6(1) of schedule 3) may make a (non-present) licence holder guilty of an offence under section 1 of the Act if that holder has knowingly allowed the sale (section 1(3)(b)).
134. It must be stressed that these scenarios are provided as examples and each case would have to be considered on each individual circumstance.
Application/Eligibility for personal licences
135. In order to be eligible to apply for a personal licence an applicant must demonstrate to the relevant Licensing Board that: -
- They are aged 18 or over;
- They must possess a licensing qualification; and
- No personal licence previously held by applicant has been revoked within the period of 5 years ending with the day on which the application was received.
136. In determining applications for personal licences an important element is the notification process requiring Boards to notify the chief constable of all applications. This notification process allows the chief constable to confirm whether or not the applicant has been convicted of a relevant offence. If they have, the police can recommend refusal of the application.
137. If the applicant has no relevant convictions and meets all the eligibility criteria set out in section of the Act, then the Board must grant the licence.
138. Under section 75 of the Act applicants are under a duty to notify the Licensing Board should they be convicted of a relevant or foreign offence during the application period. Should Boards receive such notifications they must suspend consideration of the application and notify the police of the conviction seeking either confirmation of the relevant or foreign offence or that no relevant or foreign offence has been committed. At this time should a relevant or foreign offence have been committed the chief constable may recommend refusal of the application. Licensing Boards must, resume consideration of the application process and, in these circumstances, take the chief constable's recommendations into consideration when determining the application.
Renewal of personal licence
139. Renewal of the personal licence every ten years provides an opportunity to ensure that the arrangements ensuring that all convictions for relevant and foreign offences have been properly notified to the relevant licensing authority have worked and nothing has been missed, and that all such convictions have been properly endorsed upon the licence. It also provides an opportunity to ensure that the photograph of the holder on the personal licence is updated to aid identification.
140. The determination of an application for renewal of a personal licence will be the same as an application for a personal licence. In other words it will be dealt with by the clerk if the formalities are correct and there are no convictions. If there are convictions and/or a recommendation from the police, the board must have a hearing to consider the application and may refuse to grant a further licence..
Licensing qualifications/training
141. Section 74(3) of the Act requires that to be eligible for a personal licence an applicant must hold a licensing qualification. Furthermore personal licence holders are required to undertake mandatory training every 5 years as set out in section 87 of the Act. Section 91 of the Act provides a power for Ministers to set out in regulations what qualifications are applicable.
Relevant Licensing Board
142. Personal licences are valid for ten years unless surrendered, or suspended or revoked. Once granted, the Licensing Board which issued the licence remains the "relevant Licensing Board" for it and its holder, even though the individual may move out of the area or take employment elsewhere within the ten year duration of the licence. The personal licence itself will give details of the issuing Licensing Board.
Review of the personal licence
143. The new licensing system provides for a pro-active role for Boards and a range of sanctions that can be used against a personal licence holder where that action may be appropriate. The Act does, however, provide a mechanism whereby Licensing Boards should consider all the relevant facts before considering any action.
144. The Act, therefore, provides that Licensing Boards must hold a review hearing should they become aware of the following: -
- They receive notification from the court of a conviction for a relevant or foreign offence; or
- They receive notification from the licence holder of any conviction (they are required to notify the Board within one month of the date of the conviction), for a relevant or foreign offence.
145. These hearings are not courts of law, and anyone asked to provide the Boards with evidence, do not do so under oath. They are an opportunity for Boards to hear all the circumstances relating to a particular case to aid them in making a judgement, and also an opportunity for a licence holder's case to be heard. It is important, therefore, that any hearing should not be intimidating for the licence holder, and that the hearings should be conducted in an open and fair manner. It should be remembered, however, that Boards will be acting in a quasi judicial manner and some formality will be required.
146. If following a hearing under sections 83 or 84 of the Act a Licensing Board should feel that a sanction is required against the personal licence holder then, depending on the circumstances they can take one of the following actions: -
- Revoke the licence;
- Suspend the licence for such period, not exceeding 6 months, as the Board considers appropriate; or
- Endorse the personal licence
147. The introduction of endorsements is based on a similar approach taken with driving licences. Should a personal licence holder receive 3 endorsements from the Licensing Board, section 86 of the Act requires Boards to hold a hearing. Following a hearing , the Board can decide to take no further action or if further action is warranted may: -
- Suspend the personal licence for such period, not exceeding 6 months, as the Board considers appropriate; or
- Revoke the licence
148. If this action is taken then the Board must give the licence holder notice of this and the reasons for the decision.
Changes in name or address
149. The holder of the licence is required by section 88 of the Act to notify the Licensing Board of any changes of name or address. These changes should be recorded by the Licensing Board and the procedure for this is set out in section 89 of the Act.
Updating the personal licence
150. It is essential that the details contained on the personal licence are accurate and kept up to date. In order to achieve this, the Act places a duty on Licensing Boards to update the personal licence should any of the following occur: -
- A personal licence is reviewed, enter the renewal date;
- Where a licence is suspended, enter the date and period of any suspension;
- The Board receives notification of a conviction, enter the date of the conviction and the nature of the offence;
- A personal licence is endorsed by the Board, the Board must enter details of the conviction or conduct giving rise to the endorsement;
- The Board receives notification of a change of name and/or address the new details must be entered; and
- Where a Board receives details of training undertaken those details must be entered
Relevant offences
151. The relevant offences are set out in The Licensing (Scotland) Act Regulations ???. A list of these offence s is provided as Annex ?? to this guidance.
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