In the Wee Small Hours


I have been asked a couple of times recently about the law surrounding late night deliveries of alcohol. The query typically presents in the nature of a “dial a drink” sort of outfit, advertising sale and delivery of alcohol to your home throughout the night.

Delivery of alcohol is by necessity an “off sale”. It is purchased for consumption on one premises for consumption on another. In most cases, this will involve a delivery to a residential address, eg your weekly supermarket shop. Another classic example is the quarterly box of wine arriving from the wine club.

The maximum hours available for off sales are 10am to 10pm. There is another difficulty which is less well known.  It is illegal to DELIVER alcohol between 12midnight and 6am. Your weekly supermarket shop can legally arrive anytime between 6am and Midnight; but if the driver is delayed he will have to wait till 6am the following morning.

There are also a number of strict rules in relation to record keeping and other matters when it comes to alcohol deliveries.

A number of “dial a drink” businesses seem to offer off sales not only after 10pm, but also say that the order can be delivered right through the wee small hours. They are normally targeted at house parties or post-clubbing groups wishing to continue their enjoyment of their night back at a private residence.

It would be interesting to note how such operations believe they are meeting the requirements of the law.

The irony is that the provision which created the “dead zone” for deliveries of alcohol between 12midnight and 6am arose, as far as I am aware, as a result of concerns raised about these “dial a drink” operations.

There is an additional legal point of interest here. What constitutes a sale? Section 147 of the Licensing (Scotland) Act 2005 defines “sale” as including exposing to sale; or offering for sale. That would seem to imply that simply offering off-sales after 10pm is treated as a sale and therefore would be illegal. But how does that fit with, for example, my placing a supermarket order online at 10.05pm?

Section 63 says that an offence is committed if a person sells alcohol outwith licensed hours (in the off sale context, that is 10am to 10pm) “on licensed premises”. If I phone up “dial a drink” (usually a mobile phone number) is that a sale “on licensed premises”? To confuse matters further, s.63(6) says: “Nothing in this section prevents or restricts (a) the ordering of alcohol for consumption off licensed premises, or (b) the despatch of alcohol so ordered by the person selling it”. 

What a maze we find ourselves in here!

The key words for me are “ordering” and “despatch”. Section 63(6) allows the order to be PLACED. It should not be fulfilled until the start of the next period of licensed hours – 10am the next morning. The order having been fulfilled, the alcohol can be DESPATCHED by the seller outside of licensed hours – but not DELIVERED between 12midnight and 6am.

In Valentine v Bell 1930 SLT 685 the court held that delivery was not a relevant consideration as to whether a sale had taken place.

Add all of that up, and perhaps we have a situation where the drafting of the 2005 Act again can be said to be less than perfect. It does not appear to recognise the modern ability for me to place an order online at any time or even by using my smartphone supermarket app. Technically speaking any such order can be received but not effected unless during the licensed hours; the reality is that the order may go through as accepted but perhaps my money is not lifted from account until the next working day, perhaps at the point of despatch, usually the next day.

I am not convinced the 2005 Act deals with all of this clearly.

In the case of the wee hours “dial a drink” service, it seems to me that if I order a kerry-oot at, say 1am, and a chap arrives with my booze half an hour later, then certainly my order has been effected and not simply received at the time the order is placed, and therefore not covered by the exemption in s.63(6)(a); and it has been delivered and not simply despatched by the seller outwith the licensed hours which is not covered by the exemption in s.63(6)(b). Finally, the delivery of the alcohol  breaches s.120 as regards the prohibition on deliveries between 12midnight and 6am.

And if you have managed to follow all of that, time for a lie down with a wet towel wrapped round the head, I fear.


About Stephen McGowan

Leading Scottish licensing solicitor at TLT LLP.
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