Put to the test

Previous articles have featured the controversial test purchasing scheme, which has been piloted in Fife. With effect from 1 May 2007 the pilot will be extended to cover the whole country. It will be interesting to see how the scheme will be received in other areas.

While there are some who have been muttering darkly about the use of agents provocateurs, my experience is that having such a system in place is not of itself unfair. The police will argue, with perfect justification, that youth crime and abuse of alcohol by young people are on the increase. They must be getting it from somewhere. If the source of the alcohol is attacked, it should follow that the problem will be improved.

Alternative to prosecution?

In the average licensing board, it is difficult enough to argue against the police. In an election year it has been impossible for licensing board members to observe their quasi-judicial function and to ignore the potential for soundbites, deploring the wanton depravity of the licensed trade, and their staff, if they fall short of perfection. The policy which has been adopted by the Fife boards has essentially been “two strikes and you’re out”. Any licensee who has failed two test purchases has had his or her licence suspended, typically for three or four months. The latest figures suggest that some 15% of off sale premises, and 19% of on sale premises have failed at least one test purchase. I am not aware of any criminal prosecutions having been brought against those who have had two failures.

Some may say this is commendable restraint, compassion even. Why kick someone who has already been punished by having their licence removed? The cynic, however, might say that this conveniently avoids the possibility of a due diligence defence being tested by an independent judge. I hesitate to be critical of any licensing board, but there are no signs that the due diligence defence is being given the slightest consideration. In at least two cases, the licensee was not present at the time of either test purchase, and there was no suggestion that he or she had connived at or condoned the sale.

In cases where there has been a single failure of a test purchase, the practice of the police has been to raise the matter at the time of renewal of the licence. Most boards have agreed to renew the licence, subject to a warning. Usually this has been meekly accepted. In one case, Somerfield Stores argued that they had a satisfactory due diligence practice, and threatened to instigate a judicial review if any such warning were to be issued. The board in that case backed down.

Proportionate response

The police have been emboldened by the support they have had from boards, and are extending their suspension attempts. In one case in March a hotel had had a (disputed) charge of selling after hours marked “no pro” by the procurator fiscal. There was subsequently a single test purchase failure. In neither case was the designated employee present; however, the police complaint alleged that this showed a “contemptuous regard” for the licensing legislation, and that the licence should be suspended.

Compare this with the one case arising from the scheme which has resulted in a prosecution. That resulted in a £225 fine. The cost to even a small establishment of a three month suspension could easily amount to 50 times that. To the loss of turnover there must be added redundancy costs, and the fact that trade will not immediately revert to pre-suspension levels after the ban is over. Many businesses simply could not survive that. When the new law is in force, the suspension will have immediate effect until the sheriff principal can find a slot for an interim appeal hearing. While I accept there is a serious social problem, I question whether the Fife pilot is being implemented fairly and with a sense of proportion. I hope licensing boards in other areas will reflect on the mistakes which may have been made. The result of the BP appeal is awaited with interest.

At the time the pilot scheme started, the Scotsman reported that at least 158 serving police officers had criminal convictions. The only force which declined to provide data was Fife Constabulary.

Tom Johnston, Young & Partners LLP, Dunfermline