Can a Publican detain a Drunkard?

ON THE LEGAL POWERS OF APPREHENSION AND DETAINMENT WHICH MAY BE OPEN TO LICENCE HOLDERS IN RESPECT OF DRUNK AND INCAPABLE PERSONS ON THEIR PREMISES

I had a very interesting query a few weeks ago which arose out of the delivery of the new SCPLH-R course for the BII. The Licensing (Scotland) Act 2005 appears to be silent in relation to what powers, if any, a licence holder has to endeavour to detain or apprehend a drunken troublemaker, presumably whislt waiting on a police officer to arrive to deal with the situation.

The answer to this riddle is found not in the 2005 Act but, perhaps a little surprisingly for non police officers (who will no doubt be well aware of the rule), in the Civic Government (Scotland) Act 1982. This may befuddle some because the 1982 Act is the legislation dealing with various licensing regimes for local authorities (taxis, street trading and so on) but not alcohol. But the 1982 Act is not simply a licensing Act. It deals with all manner of other laws and part of that is in relation to the control of order and general offences which may offend public safety or civic amenity.

Section 50 of the Act says: “Any person who, while not in the care or protection of a suitable person, is, in a public place, drunk and incapable of taking care of himself shall be guilty of an offence”.

The definition of “public place” is interesting here. The 1982 Act actually creates a special definition of “public place” for the purposes of this specific offence. The general definition under the 1982 Act would not, in my view, include a pub, because it says (at s.133): “any place to which the general public have unrestricted access”. The general public do not have unrestricted access to a licensed premises: they are there at the invitation of the licensee, and that invitation can be withdrawn (see my blog on the Right of Refusal). However, s.50 of the Act relaxes that definition specifically in relation to this offence as follows: “public place” has the same meaning as in section 133 of this Act but includes (a)any place to which at the material time the public are permitted to have access, whether on payment or otherwise”. That broadening of the definition would, in my view, capture a pub or licensed premises.

That brings me on to s.59 of the 1982 Act, which says: “The owner, tenant, or occupier of any property in, upon, or in respect of, which an offence to which this section applies is being committed or any person authorised by him may apprehend any person whom the owner or, as the case may be, the tenant, occupier or authorised person finds committing that offence and detain the apprehended person until he can be delivered unto the custody of a constable”.

Section 59 applies to s.50.

To put it another way, a licence holder or his authorised agent such as a member of staff is entitled to apprehend and detain a customer where that customer is drunk and incapable.

There is no particular guidance here as to the level of force which may or may not be allowed in apprehending or detaining said customer. Section 116 of the 2005 Act refers to use of “reasonable force” by an authorised person in ejecting an unruly patron. One may be forgiven for supposing that “reasonable force” may also be used in apprehending or detaining this hypothetical miscreant.

A seperate, but crucial consideration is whether this power should in fact be used. Responding to a violent incident in licensed premises is something which must be properly risk assessed and special training delivered to staff. Serious thought must be given to the matter when there is a risk of physical danger so although the power exists this should not be treated lightly.

I advise clients to speak to the police about such matters – they are the experts and you may be surprised just how delighted they will be at a publican making a proactive attempt to engage with them to ensure policies and procedures are in place. And building relationships thorugh such discussions is no bad thing.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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