The Scottish Government

_____ _____

Dear Sir/Madam

BYELAWS PROHIBITING THE CONSUMPTION OF ALCOHOL IN DESIGNATED

PUBLIC PLACES

1. The purpose of this circular is to provide advice to local authorities applying to the Scottish

Ministers for the confirmation of byelaws prohibiting the consumption of alcohol in designated

public places. It replaces the advice contained in circulars HHD 6/1993 and 9/1994.

Background

2. Following a successful experiment in the use of byelaws to prohibit drinking in designated

parts of Galashiels, Motherwell and Dundee, other local authorities were invited in 1993 to submit

proposals for similar byelaws under powers contained in sections 201, 202 and 203 of the Local

Government (Scotland) Act 1973.

3. Ministers agree that public drinking can adversely affect the quality of life for residents in a

particular place, To date, 27 local authorities across Scotland have byelaws which prohibit drinking

of alcohol in designated public places in more than 480 towns and villages. These byelaws have

significantly reduced the nuisance and disorder normally associated with public drinking and the

Executive will continue to support councils that come forward with byelaw proposals.

Scope of Byelaws

4. A number of authorities have enquired whether the Scottish Ministers would be prepared to

confirm byelaws covering the whole or a significant proportion (e.g. all of the built-up area) of local

authority areas. While it is not Executive policy to pursue a blanket ban on drinking in public,

Ministers would be prepared to support bans that cover population centres or other specified

geographical areas especially where there has been a history of alcohol-related disorder, The areas

should be clearly definable both in the byelaw and on the ground, to avoid doubt and confusion,

5. The Executive has no plans to introduce a general provision in primary legislation making it

an offence to consume alcohol in any public place. Drinking in public may be quite acceptable and

cause neither problem nor nuisance depending on the circumstances. To introduce byelaws covering

whole local authority areas could, by increment, effectively introduce a general offence of drinking

in public. The Executive considers that this would be unacceptable.

6. Random and isolated incidents of problem behaviour may be tackled in other ways by the

police and courts under statute or common law (for example, under provisions of the Antisocial

Behaviour etc. (Scotland) Act 2004 or breach of the peace, depending on the facts and circumstances

ofthe individual case).

7. The research carried out into the impact of the experimental byelaws identified concerns over

displacement (ie people moving outwith the boundary of the designated area to continue drinking)

although the extent and nature of the problem varied. As well as considering carefully the

justification for the boundaries of proposed areas (in terms of the evidence of problems to date),

Scottish Ministers will consider equally carefully proposals which aim to anticipate displacement. A

judicious approach should therefore be adopted by local authorities contemplating proposals to

extend the designated areas beyond known troublespots and full explanation should be given for any

expectation of displacement. Displacement is not an inevitable consequence of designation.

8. Local authorities may wish to consider providing for exceptions in the application of their

byelaws to cover local celebrations, festivals etc. The model byelaws (see Annex A), for example,

provide that they shall not apply between 6pm on 31 December and 6am on 1 January.

Conveyancing Description

9. Some authorities have enquired about whether or not there is need for each area designated

for the purposes of the byelaws to be described in the same precise style as is used in conveyancing

deeds. Authorities should seek to ensure that each such area is described with sufficient certainty so

that a court would have no difficulty in any given case in determining what that area was. The

benefit of employing a "conveyancing" style of description of such areas is that it should, of course,

achieve such certainty.

10. However, it may be that in some cases sufficient certainty could be achieved without

employing that style of description. Whether that is so in any given case is primarily a matter for the

local authority concerned although the Executive would be happy to consider any particular

description in draft. What should be made very clear is the perimeter of each area. This would

require a written description of the boundaries of that perimeter (by referring, for example, to the

edge of a road or to a wall surrounding a park or a fence surrounding a playing field). That written

description could be supported by giving a clear indication of that perimeter on a detailed street plan.

11. When describing the designated area, authorities should take account of any places within the

boundaries of the proposed area over which they do not have power to make byelaws under sections

201-203. It is the responsibility oflocal authorities to make sure that they have the power to make a

byelaw covering all parts of the designated area.

Model Byelaws

12. The majority of byelaws currently in place across Scotland are based on a model byelaw,

developed by the then Scottish Office, which was intended to promulgate best practice on this issue.

The model byelaw provides at byelaw 3(1) that any person:

''who consumes alcoholic liquor in a designated place shall be guilty of an offence"

13. Concerns have been expressed that under the current model it can be difficult to prove that an

accused was consuming alcoholic liquor in a designated area unless he or she was actually seen

doing so. It has been claimed that, on occasion, courts will not convict on circumstantial evidence

alone. In its Report, published in 2004, the Working Group on Off-Sales in the Community also

commented on the possible problems of proving the drinking offence. The Report is available at

http://www.scotland.gov.ukllibrary5/society/osc-00.asp.

14. Currently, South Ayrshire Council has a byelaw that criminalises the possession of an open

container of alcohol in a designated place. The intention behind this model is to avoid difficulties

with proving that an accused had actually been drinking if he had not been seen to do so. The

byelaw in use in South Ayrshire additionally provides at byelaw 3(1) that any person:

''who is found in possession of an open container of alcohol in a public place shall be guilty of an

offence"

15. Recommendation 23 of the Working Group Report stated that "the Executive should consider

producing a new model byelaw on public drinking, using South Ayrshire's present byelaw as a

template." Some local authorities have also contacted the Executive and indicated that they wish to

revise their existing byelaws to follow the example of South Ayrshire.

16. While it is clear that the policy intention behind the South Ayrshire byelaw is to deal with the

nuisance caused by people drinking in public places, there is a risk that the byelaw may also

criminalise innocent behaviour, that of being in possession of an open container of alcohol from

which there may be no intention of drinking. An example of this might be a person carrying an open

bottle 6f alcohol from his or her house to a party at a neighbour's house.

17. The Executive is satisfied that the offence in the original model can be inferred from the

surrounding circumstances. For example, if two police officers found an individual in possession of

a half empty container of alcohol in a public place and observed that the behaviour of the individual

was not consistent with a state of sobriety, or detected the smell of alcohol on his breath, at a place

where it is well known that people congregate to consume alcohol, then it could be inferred from the

circumstances that the individual had consumed alcohol in a public place.

18. However, in order to address concerns of local authorities and the Working Group, the

Executive has drafted a third alternative model byelaw. It reads at byelaw 3(1):

"Any person who consumes alcoholic liquor in a designated place or is found to be in possession of

an open container containing alcoholic liquor in a designated place in circumstances whereby it is

reasonable to infer that that person intended to drink from it whilst in a designated place shall be

guilty of an offence"

19. This formulation would have the same effect as the South Ayrshire byelaw in that there would be no need to prove an accused had actually drunk from the container. But it would also avoid

criminalising innocent behaviour where there was no intention to drink in a public place.

20. A further alternative model has been formulated by Edinburgh City Council, which reads:

" ... any person who consumes alcoholic liquor in a designated place and fails to desist on being

required to do so by a Police Constable, shall be guilty of an offence... "

21. This fonnulation is intended to allow a flexible approach to enforcement of the byelaws,

enabling police to deal with problem behaviour, while allowing those who are drinking peacefully to

continue. However, it should be noted that the discretionary power given to police by this

fonnulation may give rise to uncertainty among the public as to whether or not they will be permitted

to consume alcohol in a designated place. In order to address this, local authorities wishing to use

similar byelaws should consider what measures can be taken to make clear the circumstances in

which police expect to use this power. This might take the fonn of a protocol or similar publicly

available document, agreed with relevant local agencies such as police and Procurator Fiscal.

22. In light of the requests from local authorities and the recommendation contained within the

Working Group Report, we now write to infonn local authorities of the alternative models,which

exist. In doing so, we would wish to avoid a compulsory change to byelaws generally, but wish to

give authorities the opportunity to amend their byelaws if they think an alternative model would be

more appropriate for local circumstances. The four potential model byelaws are:

• the current model,

• the South Ayrshire model,

• the new Scottish Executive model, and

• the Edinburgh model.

23. Attached for infonnation is a copy of model byelaws showing the four alternative wordings at

byelaw 3(1) (Annex A), an example of a Schedule describing designated places from a confinned

byelaw (Annex B), and an explanation of the process involved in making these byelaws (Annex C).

24. Authorities should be aware that the Licensing (Scotland) Act 2005 (the 2005 Act) will repeal

the Licensing (Scotland) Act 1976, and that certain tenninology referred to in the model byelaws will

change in consequence. Any new or amended byelaws which are expected to come into force after

the commencement of the 2005 Act should take account of these changes. Further guidance,

including a revised model incorporating appropriate wording, will be issued in advance of the I commencement of the 2005 Act. It is anticipated that the 2005 Act will come into force in lat~ 2009.

Enforcement

25. Authorities should also note that sections 128 and 129 of the Antisocial Behaviour etc.

(Scotland) Act 2004 give police power to issue a fixed penalty notice for drinking alcohol in

contravention of byelaws made under sections 201-203 of the Local Government (Scotland) Act

1973. Following evaluation of the pilot project on use of fixed penalty notices for certain antisocial

behaviour in Tayside, this power is being made available to all police forces. National roll-out will

begin in the spring and all forces will be in a position to issue fixed penalty notices by the end of

2007.

Submission of Draft Byelaws

26. Local authorities are requested to submit byelaws in draft fonn before they advertise their

intention to apply to the Scottish Ministers for confinnation of the byelaws under section 202(4) of

the Local Government (Scotland) Act 1973; and before they deposit a copy of the byelaws in their

offices under section 202(5) of the 1973 Act. This will avoid the need to re-advertise the byelaws if

there are changes which require to be made.

27. Attached at Annex C is an explanation of the process and respective roles of Scottish

Ministers, the Scottish Executive, and local authorities in making and confinning byelaws.

28. 'All byelaw applications and any other enquiries about the byelaws should be sent to:

Criminal Law Division

Room GW.15

St Andrews House

Regent Road

Edinburgh

EHI 3DG

Email address: alcoho1.byelaws@scotland.gsi.gov.uk

Telephone enquiries should be directed to 0131 244 2214.

A copy of this circular will be available from the Scottish Executive website at www.scotland.gov.uk

Yours faithfully

ANNA COSSAR

Policy Advisor

------------------------------

ANNEX A

DRAFT BYELAWS MODEL

THE [ ] COUNCIL

BYELAWS PROHIBITING CONSUMPTION OF ALCOHOL IN DESIGNATED PUBLIC

PLACES

[ ] Council ("the Council") in exercise of the powers conferred upon it by sectiohs 201,

202 and 203 of the Local Government (Scotland) Act 1973, and of all the other powers enablirg it in

that behalf, hereby makes the following byelaws:-

Interpretation and Citation

1. (1) In these byelaws, unless the context otherwise requires -

"alcoholic liquor", "licensed canteen", "licensed premises", and "registered club" have the

same meanings as in the Licensing (Scotland) Act 1976;

"designated place" means any place to which the public have access within the areas

specified in Schedule 1 to these byelaws and shown outlined in red on the plans annexed and' signed

as relative hereto.

(2) These byelaws may be cited as "The [ ] Council Prohibition of Consumption of

Alcohol in Designated Public Places Byelaws 200[]".

Application

2. These byelaws shall not apply -

(a) On 31 December, from 6pm until the end ofthat day; and

(b) On 1 January, until 6am.

Offence

3. (1) Subject to paragraphs (2) and (3) ofthis byelaw, any person who consumes alcoholic

liquor in a designated place shall be guilty of an offence and liable on summary conviction t<)a fine

not exceeding level 2 on the standard scale. [Current Model]

(1) Subject to paragraphs (2) and (3) of this byelaw, any person who consumes alcoholic

liquor in a designated place or is found to be in possession of an open container containing alcoholic

liquor in a designated place shall be guilty of an offence and liable on summary conviction to a fine

not exceeding level 2 on the standard scale. [South Ayrshire Model]

(1) Any person who consumes alcoholic liquor in a designated place or is found to be in

possession of an open container containing alcoholic liquor in a designated place in circumstances

whereby it is reasonable to infer that that person intended to drink from it whilst in a designated

place shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2

on the standard scale. [New Scottish Executive Model]

(1) Any person who consumes alcoholic liquor in a designated place, and fails to desist

on being required to do so by a Police Constable, shall be guilty of an offence and liable on summary

conviction to a fine not exceeding level 2 on the standard scale.

[ EdinburghModel]

(2) It shall not be an offence against these byelaws to do anything in any designated place

which is a licensed canteen, licensed premises or a registered club.

(3) It shall not be an offence against these byelaws to do anything in any designated place

in respect of which there is in operation:

(a) an occasional licence In terms of section 33(1) or (2) of the Licensing

(Scotland) Act 1976; or

(b) an occasional permission in terms of section 34(1) of that Act,

during any period when alcoholic liquor maybe sold there by virtue of that licence or, as the

case may be, permission and for 15 minutes after the expiry of such period.

Presumptions

4. (1) This byelaw applies for the purposes of any trial for an offence against these byelaws.

(2) Any liquid found in a container shall, subject to the provisions of this bylaw, be

presumed to conform to the description of the liquid on the container.

(3) A container which is found to contain-

(a) no liquid; or

(b) insufficient liquid to permit analysis

shall, subject to the provisions of this byelaw, be presumed to have contained at the time of

the alleged offence liquid which conformed to the description of the liquid on the container.

(4) A person shall not be entitled to lead evidence for the purpose of rebutting a

presumption mentioned in paragraphs (2) or (3) above unless, not less than 7 days before the date of

the trial, he has given notice to the prosecutor of his intention to do so.

Public Notice of Effect

5. (1) The council shall erect one or more signs at or reasonably adjacent to each designated

place for the purpose of giving notice of the effect of these byelaws.

(2) It shall be no defence in proceedings against a person for an offence under these

byelaws that the council failed to comply with paragraph (1) of this byelaw.

ANNEX B

EXAMPLE OF SCHEDULE 1

List of Designated Places - East Kilbride

1. All of the public area within the area known as the Town Centre, East Kilbride including the

Town Centre Park bounded by a line running along the Queensway, Murray Hill, Queensway,

Cornwall Street, Blacklands Road, Cloverhill View, Cloverhill Terrace, Park Terrace, Brouster Hill,

Cornwall Street, Churchill Avenue, across Queensway across Murray Road returning to Queensway

including the underpasses leading thereto as shown outlined in red and marked "I" on the map

annexed to and forming part of these Byelaws.

2. All of the public area within the area known as the Village Shopping Centre bounded by a

line funning along West Mains Road, Glebe Crescent, Glebe Street, the eastern edge of the footpath

linking Glebe Street and Stuart Street, Stuart Street, Maxwell Drive thereafter following a line

adjacent to 9 Maxwell Drive and the rear of 15-25 St Bryde Street leading to a footpath linking St

Bryde Street to Main Street, Main Street, Kittoch Street and returning to West Mains Road and

shown outlined in red and marked "2" on the map annexed to and forming part of these Byelaws.

3. All of the public area within the area known as Calderwood Square, East Kilbride, including

the walls surrounding and within the same bounded by a line running along Calderwood Road,

Capelrig Drive, Gordon Drive, Maxwellton Drive and returning to Calderwood Road and shown

outlined in red and marked "3" on the map annexed to and forming part ofthese Byelaws.

4. All of the public area within the area known as St Leonards Neighbourhood Centre (including

the underpasses leading thereto and the walls surrounding and within the same) bounded by a line

running along the footpath to the north of St Leonards Road, High Common Road, Blacklaw Drive,

Glen Urquhart and a continuation of Glen Urquhart along a footpath heading in a northerly direction

where it adjoins St Leonards Road and shown outlined in red and marked "4" on the map annexed to

and forming part of these Byelaws.

5. All of the public area within the area known as the Murray Square, East Kilbride (including

the steps leading thereto and the walls surrounding and within the same) bounded by a line running

along Livingstone Drive, Heathery Knowe, Murray Road, footpath to the east and south of Liddell

Grove, Liddell Grove, Owen Avenue, Murray Road, across Murray Road along the line of the

western edge of the underpass heading in a northerly direction to the footpath to the west of and

leading to Cullen Road, Cullen Road and returning to Livingstone Drive and shown outlined in red

and marked "5" on the map annexed to and forming part of these Byelaws.

6. All of the public area within the area known as Westwood Square, East Kilbride (including

both levels thereof, the bridge leading thereto, the car parks on either side and the walls surrounding

and within the same) bounded by a line running along Westwood Road, Rockhampton Avenue,

Tasman Drive, Belmont Drive and a continuation of a line heading north :trom Belmont Drive to

Westwood Road and shown outlined in red and marked "6" on the map annexed to and forming part

of these Byelaws.

7. All of the public area within the area known as Greenhills Square, East Kilbride (including

the steps, overbridge and underpasses leading thereto, the walls and car parks surrounding and within

the same) bounded by a line running along Greenhills Road, Lickprivick Road, Greenhills Crescent,

access road to Greenhills Parish Church and following the property boundaries of the dwellinghouses

to the south and west and north of Tumberry Place where it adjoins a footpath linking Tumberry

Place to housing on North Berwick Crescent and Troon Avenue returning to Greenhills Road and

shown marked "7" on the map annexed to and forming part of these Byelaws.

8. All of the public area within the area known as the Whitehills Shopping Area bounded by

Quarry Road, High Whitehills Road and Greenhills Road and marked "8" on the map annexed to and

forming part of these Byelaws.

ANNEX C

MAKING OF BYELAWS TO PROHIBIT DRINKING IN PUBLIC: ACTION TAKEN BY

SCOTTISH EXECUTIVE, LOCAL AUTHORITIES AND SCOTTISH MINISTERS

1. The local authority (LA) must advise the Scottish Executive (SE) that they intend to make

byelaws. A draft copy of the proposed byelaws together with the corresponding plans must be sent to

SE to comment on before the LA make and advertise the byelaws. It would be useful, and help to

speed up the checking and confirmation process, if draft byelaws were submitted in electronic form.

Plans will still need to be sent in hard copy.

2. When the copy of the proposed byelaws and plans are received they are checked against the

relevant model byelaws. The area that the byelaws are intended to cover must be clearly defined on

the plan and OS maps are to be used. The aim of this is to avoid the need for amendments at the

confirmation stage.

3. After seeking advice from the solicitors the SE writes back to the LA suggesting that any

comments made are to be incorporated into the byelaws before they are made and that they follow

the procedures in Section 202 of the Local Government (Scotland) Act 1973. The LA must also

consult the police and the local procurator fiscal to ensure that they are content with the proposed

byelaw and plan, before they are advertised and preferably before the draft is submitted to SE.

SE will endeavour to respond to submissions of draft byelaws within 28 days, although it should be

noted that if there is a problem with the draft, for example due to departures from the models, failure

to submit relevant plans, lack of clarity with regard to identification of the designated area, it may

take longer.

It is important that these steps are taken before the LA advertise the byelaws to avoid the need

for changes to be made and the revised byelaws to be re-advertised.

4. Once agreement has been reached on the draft, the LA advertise the intention to apply for

confirmation of the byelaws in a local paper, and make the byelaws and plan available for public

inspection, for at least one month, in accordance with section 202. The advertisement must explain

that objections are to be addressed to Scottish Ministers, Criminal Law Division, St Andrews House,

Edinburgh, EHI 3DG.

SE will inform the LA of and consider any objections received. Objectors will be informed by the

Scottish Ministers of their decision.

5. After a period of at least one month from the date of expiry of the advertisement period, the

LA makes the byelaw(s) and submits the principal copy, duly authenticated (Le. signed and dated

and embossed with the LA seal), for confirmation by the Scottish Ministers.

6. Also submitted at the same time as applying for confirmation are copies of letters of content

from the police and procurator fiscal and the advert informing the public of the proposed byelaw.

7. SE will agree a commencement date with the LA which will be at least 1 month after the

byelaw has been confirmed. This to allow the LA to inform the relevant authorities when the byelaw

will come into force.

[

8. The Scottish Ministers will then have agreed that confirmation can proceed at an official

level. The Head of Criminal Law Division will confirm the byelaws. A confirmation docket is signed

by the Head of Division and this forms part of the byelaws. The date of signing is the confirmation

date.

9. The Scottish Ministers will write to the MSPs who have constituencies in the LA area

affected by the byelaw to inform them of when the byelaw will come into force.

10. SE will write to the LA confirming the date of commencement and the date the byelaws will

come into force. The principal copy of the byelaw, plans and the confirmation docket will be

returned to the LA. This is sent by Recorded Delivery.

11. SE will arrange for a press release to be issued.

12. The LA must inform the relevant authorities of when the byelaw is to come into force,

arrange for the byelaw to be advertised in the local paper and put up signs.