ON THE IMPORTANCE OF HAVING DEMONSTRABLE DUE DILIGENCE IN RELATION TO CRIMINAL LIABILITY UNDER THE LICENSING (SCOTLAND) ACT 2005
Hot on the heels of the decision in The Epic Group Scotland Ltd v Shanks  HCJAC 20 comes a decision from Paisley, Feeney v Paisley Procurator Fiscal  HCJAC84. Both cases concern the criminal appeal following conviction of under age sales and centre on the concept of “due diligence”. In the Epic case the operator had been convicted of selling alcohol to two girls aged 17. The operator provided detail of the age verification checks, staff training, challenge 25 and other steps that they had in place but the justice decided to convict on the basis that these policies had been ineffective as demonstrated by the under age sale. The operator appealed this decision, and won. The court agreed that the test is not whether the policies – whether the due diligence – was effective but whether all due diligence had been exercised to prevent the occurrence of the offence. The case demonstrates the fundamental importance of strong due diligence and should also serve as a reminder that in a case where the licence holder is tricked on purpose, perhaps some consideration should be given to those doing the deceiving. In this case, incredibly the two girls had actually been used as prosecution witnesses against the operator.
Now we have the Feeney case from Paisley. In this case Mr Feeney, who is the holder of a premises licence for an off sales, was convicted following an under age sale by a member of his staff when he was not present. He appealed and the conviction was quashed. He had provided the staff member with training on refusal of sales and asking for ID. There was till prompts in place. The staff member confirmed that all of this training had been received by her but that she had processed the sale anyway because there was a queue forming. There was no evidence of any other issues. This information was presented to the justice but the he took the view a more “robust” practice should have been in place and Mr Feeney was convicted. However, on appeal, the court confirms that the justice had not been made aware of the defence of due diligence under the Licensing (Scotland) Act 2005. The appellate court “extends sympathy” to the justice for not being aware of this and having to contend with “the complexity of the legislation and its amendments” (cue groan from every licensing solicitor in Scotland!).
The court took the view that the evidence led by Mr Feeney did establish that due diligence was in place and that therefore the conviction should not stand. The appellate court was advised of the decision in the Epic case. The advocate for the fiscal appears to have tried to distinguish the Epic case on the basis that the failure in Mr Feeney’s premises had been “systemic“. The court did not agree with this and said: “In our view, in relation to an off-licence shop such as the appellants, it has not been established that there was some failure in training or in supervision” and held that the due diligence defence under s.141A of the 2005 Act was made out.
The Feeney case, on the back of the Epic case, is yet further confirmation that a premises licence holder would do well to ensure that they have taken reasonable steps to avoid offences occuring by way of demonstrable training practices and other management or supervision policies.