07-02.3 Licensing - Offences and Provisions_e96a0b31558c5bdfcbebadbc69b4977e.pdf

OFFICIAL Unit 7 Lesson 2.3...

OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Learning Aim: The learner will be able to explain the key legislation and operational procedures in relation to liquor licencing Learning Outcomes: Introduction On successful completion of the lesson, As well as dealing with the crimes and students will be able to:- offences involving licenced premises and persons using them, the police and licensing 1. State the offences related to boards can utilise powers for the exclusion of drunkenness and the police powers and persons from entering specific licensed procedures available to address these. premises and the control of order in and within the vicinity of licensed premises. As a Police Constable you may have to deal 2. Explain procedures regarding with such offences and as such it is important consumption of alcohol in a public place that you have a competent understanding of and when you can confiscate alcohol. the subject matter. 3. Identify the offence relating to the delivery of alcohol between restricted time and state the restricted hours of delivery. 4. Explain what an Exclusion Order is, who may authorise such an order and state the offence in relation to the breach of an Exclusion Order. 5. State what a Closure Order and emergency Closure Order are in relation to licensed premises and identify who can enforce a Closure Order and an Emergency Order. 6. Explain ‘voluntary co-operation’. 7. State the relevant offences under the Identity Documents Act 2010. 1 th Amended 7 March 2024 v.4 OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Drunkenness and Other Offences Entering Premises whilst Drunk Section 111 of the Act creates an offence for any person to:- attempt to enter any relevant premises whilst drunk (other than premises on which the person resides) is drunk on any relevant premises, and is incapable of taking care of themselves Obtaining Alcohol by or for a Drunk Person Section 112 of the Act creates an offence for any person who on any relevant premises:- obtains or attempts to obtain alcohol for consumption on the premises by a drunken person who helps a drunken person to obtain or consume alcohol on the premises Sale of Alcohol to a Drunken Person Section 113 of the Act creates an offence for any responsible person, on any relevant premises, to sell alcohol to a drunken person. Staff Are Not to be Drunk on Duty Section 114 of the Act creates an offence for any responsible person in relation to any relevant premises to be drunk while on the premises. This includes the premises manager, staff and any other individual who is working in some capacity within the premises during opening hours. 2 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Disorderly Conduct Section 115(1) of the Act creates an offence for any person who, while on relevant premises is drunk, behaves in a disorderly manner or who uses obscene or indecent language to the annoyance of any person. Section 115(2) of the Act creates an offence for any responsible person in relation to any relevant premises to allow a breach of the peace, drunkenness or other disorderly conduct to take place on the premises. With the exception of Section 115(1), any responsible person referred to in the aforementioned offences includes the premises licence holder who will also be held accountable unless they can prove they did not know the offence was being committed by the employee or agent and exercised all due diligence to prevent the offence being committed. It is a further defence for a person charged with a contravention of 115(2) of the Act if they can prove that:- the accused, or an employee or agent of the accused, took all reasonable precautions and exercised due diligence That there were no lawful and reasonably practicable means by which the accused could have prevented the conduct which caused the offence. Refusal to Leave Premises Section 116(1) of the Act creates an offence for a person on any relevant premises who behaves in a disorderly manner, and refuses or fails to leave the premises, on being asked to do so by a responsible person or a Constable. Section 116(2) of the Act creates an offence for any person on any relevant premises to refuse or fail to leave the premises after the end of any period of licensed hours, on being asked to do so by a responsible person or a Constable. Where, in either case mentioned above, a person refuses or fails to leave any relevant premises an authorised person may:- remove the person from the premises If necessary for that purpose use reasonable force. 3 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions If asked by an authorised person to assist in removing a person under the circumstances above, a Constable must do so if they reasonably suspect that the person has refused or failed to leave, having been instructed to do so by the authorised person. Drunkenness in Public Section 50 of the Civic Government (Scotland) Act 1982 creates the following offences regarding drunkenness in public:- It is an offence for any person, in a ‘Public Place’ to be drunk and incapable of taking care of themselves, whilst not in the care or protection of some suitable person It is an offence for any person, in a ‘Public Place’ to be drunk in charge of any child apparently under the age of 10 years It is an offence for any person, in a ‘Public Place’ to be drunk whilst in possession of any firearm (for the purposes of this section only, the term firearm also includes crossbow) In this section, the term ‘public place’ means any place to which the public has unrestricted access including such places as common closes, stairways, and entrances or doorways, which abut onto public places etc. Including any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and any public conveyance other than a taxi or hire car. In the case of a person being found drunk in charge of a child, there must be provision made for the welfare of the child. This will depend on the incident but social work should be contacted and if the child is left in the care of a relative or friend, full systems checks must be carried out and an iVPD submitted. A Constable may consider arresting any person whom they find committing a Section 50 offence. Section 16 of the Criminal Procedure (Scotland) Act 1995 provides that where a Constable has arrested for any offence, and has reasonable grounds for suspecting that the person is drunk, he may take that person to a place designated as suitable for the care of drunken persons. Where a Constable has reason to believe that a person aged 16 years or over has committed an offence under Section 50 the Constable may deal with it by way of a Fixed Penalty Notice unless such a person is the subject of a supervision order. Note:- This option is not available in relation to section 50 where the person is in possession of a firearm Practical Considerations 4 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions One of the reasons that legislation grants power to arrest persons committing drunkenness offences is that it is often in the interests of safety of that person, or others, that they be arrested. For example being drunk and incapable is a minor offence but the consequences of the drunk person choking on their own vomit or wandering out in front of a moving vehicle are potentially lethal. In addition you should consider whether or not a drunken person is fit to be held in police custody. This may involve taking the accused to a hospital so medical staff certify whether or not the person is fit for normal discharge. If such a person is fit to be held in a police cell they should be visited frequently so as to check on their welfare. The care and welfare is fully covered within the Lesson Note on Prisoner Rights, Care and Welfare in Unit 3. This highlights the importance of the care plan questions and you informing the Custody Sergeant of all the relevant information. Activity 1 A1 Take a few minutes to read over this scenario and see if you can identify any offences. Check your lesson notes to assist you. It is 2325 hours on a Friday evening, you and a colleague are on patrol in Brookbank. At that time you receive a call to attend at the Clansman Bar as the premises manager is having problems with some customers. You attend at once and when you arrive a few minutes later you make the following observations and notes: Outside the premises you see a male staggering and in a drunken state. He is falling about and barely able to stand. His friend, who is sober, is trying to take him home. You enter the bar of the premises and speak to the premises manager. She informs you that an under-16 football team have been having a celebration party in the bar and were getting boisterous but have all quietened down. 5 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Activity 1 continued A1 You see two males who you know are only 16 years old sitting at a table with a meal and a pint of beer each. They tell you that they bought the meal and pints from the bar. You subsequently record their details. You establish that the premises are licensed until midnight and the premises manager tells you that she will have the bar cleared as quickly as possible. At this time you receive a radio call to urgently attend a disturbance and leave the premises. You return to the Clansman and it is now 0015 hours. You find that the premises are still open and a party is in full progress, with many people still drinking alcohol. You also note a person so drunk, he appears to be asleep at the bar, you witness another man purchase a pint of lager and place it in front of the sleeping man. Upon entering the premises you find that the premises manager is serving alcohol and taking money for it but she informs you it is now a private party and those present are her bona fide guests. The premises manager appears to be now under the influence of alcohol. 6 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Drinking in Public Local councils have the power to make by-laws prohibiting the consumption of alcohol in ‘designated’ public places. Evidence that public disorder and nuisance exist must be put forward to the Scottish Minister before they will confirm any such by-law. In an effort to reduce the amount of anti-social behaviour in public many local councils have identified that drinking in public is a major problem and have imposed such by-laws. You should make yourself familiar with the by-laws in your local area when you take up operational duties. Where a Constable has reason to believe that a person aged 16 years or over (who is not subject to a supervision order) has committed the offence of consuming alcohol in a public place, the Constable may deal with it by way of a Fixed Penalty Notice. Note:- Reflect on the Stop and Search Lesson, Unit 8, where Section 61 of the Crime and Punishment (Scotland) Act 1997 outlines powers for Police to require persons under the age of 18, in possession of alcohol, in a public place, to surrender that alcohol and dispose of it in a manner they consider appropriate. Key Information KI In this Section the term ‘public place’ includes any place to which the public have access for the time being (whether on payment or otherwise). It also includes any place to which the public do not have access but to which the person(s) have unlawfully gained access. It does not include licensed premises. Prohibition of Unlicensed Sale of Alcohol Section 1 of the Licensing (Scotland) Act 2005 makes provision for the regulation of the sale of alcohol, and for regulating Licensed Premises and other premises where alcohol is sold. As such alcohol must only be sold on premises under and in accordance with the Premises Licence, or an Occasional Licence applied for and granted under the Act. Anyone who sells alcohol, or who knowingly allows the sale of alcohol that does not fall into the category set out above commits an offence. 7 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions The selling of unauthorised alcohol is a serious offence and as such the level of fine for someone convicted of such an offence is set at £20,000 or imprisonment for a term not exceeding 6 months, or both. However, this does not apply in the case of alcohol sold on a premises designated as an “exempt premises”, under section 124 of the Act, or where alcohol is sold to the trade. Feedback 1 F1 If the first male was not in the company of his friend could be drunk and incapable. How old are the local youth football players? The two 16 year olds have purchased a pint ancillary to a meal but are not accompanied by an adult Selling alcohol out with licensed hours Selling alcohol to a drunk person Premise manager is under the influence of alcohol Exemptions Exempt premises are:- examination stations at an airport (for use by HMRC in the receiving, distributing and checking of product) an approved wharf at a port or hover port (for use by HMRC in the receiving, distributing and checking of product) an aircraft, a hovercraft or a railway vehicle, while engaged on a journey a vessel while engaged on an international journey, or a journey as part of a ferry service Premises which are occupied for the purposes of the armed forces (except while being used for other purposes). Other parts of designated ports, hover ports and airports e.g. landside pubs which may be accessed by those not travelling are subject to the normal licencing controls. 8 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Unauthorised Sale of Alcohol on Moving Vehicles The Act provides that moving vehicles, on which alcohol is sold can be adequately licensed by either a Premises or Occasional Licence. In particular, Licensing Boards can license “party vehicles” such as stretched limousines. Section 118 of the Act creates an offence for a person to knowingly sell alcohol on or from a vehicle at a time when the vehicle is not parked (whether permanently or temporarily) unless the selling of alcohol on or from the vehicle at such time is expressly authorised by a premises licence or occasional licence in respect of the vehicle. Delivery of Alcohol from Vehicles All deliveries and carrying of alcohol in vehicles or a receptacle must be properly and clearly recorded under the provisions of the Act. Section 119 of the Act states that before a delivery of alcohol is dispatched the delivery driver must ensure that the quantity, a description and price of the alcohol and the name and address of the person to whom the alcohol is being delivered, is recorded in a day book kept on the premises from where the alcohol is being dispatched. The driver must also carry an invoice or delivery book on his person containing the same information. Not to do so is an offence. Delivery to an address not entered in the delivery book (or invoice or day book) is also an offence. It is also an offence not to allow a Constable or Licensing Standards Officer (LSO) to examine the vehicle, the day book, or delivery book, or invoice. These requirements do not apply to deliveries of alcohol to a trader for the purposes of that person’s trade (e.g. retailers’ distribution networks delivering to stores) Prohibition of Late Night Deliveries of Alcohol Section 120 of the Act applies where alcohol is sold on any relevant premises for consumption off the premises. A responsible person commits an offence if the person knowingly delivers the alcohol to any premises (other than licensed premises) between the hours of midnight and 6am under Section 120(2). Any responsible person who knowingly allows the alcohol to be so delivered also commits an offence under Section 120(3). 9 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Activity 2 A2 Take a few minutes and read the following scenario, as you do so consider the effects that irresponsible management of licensed premises could have. Consider both inside the licensed premises and in the immediate vicinity. The Clansman Bar is under new management. The owner and the premises manager have never worked in the trade before and hold questionable associations with local criminals. The owner’s brother has just been released from prison following a sentence for being concerned in the supply of cocaine. Whilst in prison he has become friends with a man linked to paramilitary organisations in Northern Ireland. They both reside in the local area. The premises manager has in the past featured in intelligence linking him to thefts in the local area. His girlfriend is a known heroin addict and convicted shoplifter. List the potential consequences that this situation could have for order inside the licensed premises and in the immediate vicinity. 10 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Exclusion Orders Section 94 of the Act provides that where a person is convicted of a violent offence:- Committed on, or in the immediate vicinity of any licensed premises, The court may make an order prohibiting the person from entering the licensed premises concerned or other licensed premises which the court may specify. Where such an order has not been made by the court, the premises licence holder may, not later than 6 weeks after the conviction, seek an order, by summary application to the sheriff, prohibiting the person from entering the licensed premises. Where the Sheriff is satisfied that there is a substantial risk that the person will commit a further violent offence on, or in the immediate vicinity of the premises, the Sheriff may grant an order. An exclusion order may have effect for no less than 3 months and no more than 2 years. Breach of an Exclusion Order Section 95 of the Act provides that where a person enters licensed premises in breach of an exclusion order, an authorised person may remove the person from the premises and, if necessary, use reasonable force to do so. If asked by an authorised person to assist in removing the person, a Constable must do so, if the Constable reasonably believes that the person entered the premises in breach of an exclusion order. This is an offence punishable by imprisonment so you should use you powers under Section 1. Note:- An “authorised person” means the premises licence holder, the premises manager and any other person who works on the premises and is authorised by the premises licence holder or the premises manager to act in such a capacity as required by this section. 11 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Feedback 2 F2 Have known associations with criminals could be selling drugs from the premises. Could be importing illegal alcohol. Reset could be selling items that are stolen on the premises. Does the Premises Manager have a licence? Do the staff hold the appropriate qualifications? Could they be receiving money from paramilitary organisations in Northern Ireland, possibly firearms? Or be fundraising for them? Clientele may be questionable as more than likely associations of the brother or other criminals. Closure/Emergency Orders A “closure order” is an order requiring the licensed premises to be closed for such period as may be specified in the order. Section 97(1) of the Act provides that a Licensing Board may:- make a closure order on application by a Constable of or above the rank of Inspector, if the Board is satisfied that, by reason of likelihood of disorder on, or in the vicinity of the premises, closure of the premises is necessary in the interests of public safety. Section 97(2) of the Act also provides where a Constable of or above the rank of Inspector reasonably believes that:- there is, or is likely to be imminently, disorder on, or in the vicinity of, any licensed premises, closure of the premises is necessary in the interests of public safety, and 12 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions the risk to public safety is such that it is necessary to do so immediately and without making an application (per subsection 1) they may make a closure order in relation to the premises. A Constable of or above the rank of Inspector should give notice of the order to a responsible person and the period of closure specified in an emergency closure order must not exceed 24 hours. Termination of Closure Orders 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 satisfied that it is no longer necessary in the interests of public safety for the premises to be closed and terminate any closure order (whether or not an emergency closure order) The Constable of or above the rank of Inspector must ensure that notice is given to a responsible person and, in the case of a closure order made by the Licensing Board, to the Licensing Board. (Section 98 of the Act). A Licensing Board may, on application by the holder of the premises licence (or occasional licence) terminate the closure order. Extension to Emergency Closure Order Section 99 of the Act allows a Constable of or above the rank of Inspector may extend the original emergency closure order for a further period not exceeding 24 hours if they reasonably believe that:- There continues to be, or is likely to continue to be, disorder on or in the vicinity of the premises, and, That the risk to public safety continues to be such that it is necessary, in the interests of public safety, to extend the original closure period, without making an application to the Licensing Board. 13 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Voluntary Co-operation Wherever possible, police officers should then give the licence holder, manager, or premises user an opportunity to close the premises voluntarily until the following day. A closure order will normally only have to be made if police advice is disputed or rejected and it becomes necessary to take action to impose closure. When giving advice to close voluntarily, police officers should make clear that they are not engaging in a negotiation. If advice is rejected, the course of action would be to utilise the closure order, resulting in report to the Licensing Board which is not in the best interests of the premises. However, even if the licensee, or named premises manager is willing to close voluntarily, it will remain open to the Constable of or above the rank of Inspector to decide to serve a closure order, if he or she judges that to be the right course of action to take in all of the circumstances. Review of Premises Licence and Reporting Incidents on Licensed Premises You will regularly attend incidents which occur on licensed premises and it is of critical importance that you observe all aspects of the operation at the time of attendance and report these in detail to the Licensing Department. You may attend a report of a minor theft and whilst speaking to the licensee you observe drunkenness amongst patrons, presence of children, licensee uncooperative and many other issues. It is of critical importance that these issues are recorded and reported. Section 36 of the Act provides that any person may request for a review of a Premises Licence. This includes the Chief Constable and the content of incident on Licensed Premises Reports enables the Licensing department to identify problematic premises and deal with accordingly. Every Innkeeper form that is submitted is relevant in building a bigger picture for police to approach the council if there are any issues. 14 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Identity Documents Act 2010 There are instances when you may attend a licenced premise in relation to an individual presenting false identification in order to purchase alcohol. The relevant legislation is as follows: Section 4 It is an offence for a person with improper intention to have in their possession or under control:- an identity document that is false and known or believed to be false by the person having it; was improperly obtained and known or believed to have been improperly obtained by the person having it; an identity document that was improperly obtained and known or believed to have been improperly obtained by the person having it; an identity document that relates to someone else; In this case the "improper intention" would be to "establish personal information" about the holder, i.e. his or her age. A person guilty of an offence under this section is liable, on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine, or both. Section 6 It is an offence for a person without reasonable excuse to have in their possession or under control:- an identity document that is false; an identity document that was improperly obtained; an identity document that relates to someone else. A person guilty of an offence under this section is liable, on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine, or both. When confiscating an identity document record the following:- Time, date, location of seizure Name of staff/door steward identity documented presented to Description of person presenting the identity document Any other information, including answers given to any questions asked by staff when challenging presentation of document. 15 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions For further information, use the resources shown below:- Legal Database:- Criminal Law - Alcohol Licensing & Liquor Laws Review: State the offences related to drunkenness and the police powers and procedures available to address these Explain procedures regarding consumption of alcohol in a public place and when you can confiscate alcohol Identify the offence relating to the delivery of alcohol between restricted time and state the restricted hours of delivery Explain what an Exclusion Order is, who may authorise such an order and state the offence in relation to the breach of an Exclusion Order State what a Closure Order and emergency Closure Order are in relation to licensed premises and identify who can enforce a Closure Order and an Emergency Order Explain ‘voluntary co-operation’ State the relevant offences under the Identity Documents Act 2010 16 General Police Duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 17 General Police duties OFFICIAL  OFFICIAL Unit 7 Lesson 2.3 Licensing – Offences and Provisions 18 General Police Duties OFFICIAL