It wisnae me! (well actually, it was…)
Since 13 December 2010, the concept of vicarious liability has been resurrected in liquor licensing law via the Criminal Justice and Licensing (Scotland) Act 2010.
A premises licence holder can now be held liable for certain offences committed by their employees or agents. Proceedings can be taken against the licence holder irrespective of whether action is taken against the offending employee. The list of statutory offences for which the licensee can be held liable is rather wide, including selling alcohol or allowing alcohol to be sold to a person under the age of 18 years; selling alcohol or allowing alcohol to be sold outwith licensed hours on licensed premises and allowing drunkenness or other disorderly conduct on the premises.
The legislation also potentially allows an ‘interested party’ to be held liable for offences committed by staff. Whilst an ‘interested party’ cannot be the licence holder or premises manager, the meaning is wide in scope and could include, for example, a landlord who is the owner of the premises. The landlord may have no link to the operation of the premises whatsoever other than having a lease in place with the tenant. It could also include a company director who may be far removed from the daily operations of the business. One of the problems with the concept of ‘interested party’ is that it allows vicarious liability to potentially run away with itself and there is no certainty as to who may be prosecuted.
However, this concept has not yet been introduced into Scots law and, indeed, may never be.
At least with a licence holder, we know who may be prosecuted. But what if they proclaim ‘it wisnae me!’? And it genuinely wisnae them! What can they do? Well, unless they can prove that they did not know that the offence was being committed and that they exercised due diligence, the answer, in law, will be: ‘well actually, it was…’.
To establish a due diligence defence, licensees must scrutinise their due diligence procedures to ensure that they have robust systems in place to meet a due diligence test.
This is also important from a reputational risk and risk management perspective, particularly for larger operators. It may also be particularly important for those licensees who lease their bars out to an unrelated third party tenant.
The mantra here is train, train train. Every member of staff should be singing from the same hymn sheet from a knowledge and training perspective. Licence holders should not assume staff knowledge because employees have received their minimum two hour training by law and signed to that effect. Training should be reinforced on an intermittent basis, particularly when there are changes in the law due to come into play. For example, we know that from 1 October this year, there must be an age verification policy in place whereby steps must be taken to establish the age of a person buying alcohol if it appears to the person selling the alcohol that the customer may be less than 25 years of age. Staff should be vigorously trained on this new law and its implications and should have sound knowledge with regard to the forms of photographic ID that will be legally acceptable. Licensees should also ensure that there is signage in place advising customers that if they are lucky enough to look under the age of 25 years, then they will be asked to produce photographic ID.
We know that a potentially easy pitfall is failing a test purchase and, in this regard, licensees should hold regular internal training sessions for staff with role play and virtual scenarios.
Larger operators may also wish to undertake their own test purchasing initiatives to test their own systems. Where there is failure, they must act immediately. And, of course, all training (including failed test purchases and follow up action that has been taken) must be recorded, dated and signed. We must not forget that any due diligence defence must be evidence based. In other words, have sound proof of the steps you are taking to train staff.
Of course, all of this is likely to give the trade more of a headache than it already has. But, if a licensee really believes ‘it wisnae me’, then, unless they take the essential steps such as the above, the law may just respond with, ‘well actually, it was’.
Sounds a pain? Indeed. But it’s not worth it. So act now.
If you require more information on the above please contact Caroline Treanor