Sanctions for failed test purchases are not being applied so as to recognise good practice

“In England it is thought well to kill an admiral from time to time pour encourager les autres” (Voltaire, Candide)

Pity John Byng, British admiral in the Seven Years’ War. Despite being forced to sail with ships which were in need of repair, he was blamed for the loss of the island of Minorca, court martialled and shot in 1757. For those of you who have not immediately grasped the relevance of this sad tale to a licensing column, I say read on.

While premises licence reviews now come thick and fast, guidance on the appropriate tests to be applied under s 38 is still thin on the ground. There are various reasons for this, primarily economic. The initial cost, plus the fear of being landed with council’s (and counsel’s) expenses, are enough to deter most, particularly if the suspension is for a period of a fortnight or so. Nor are the logistics straightforward. With a suspension taking effect immediately, you have to be pretty quick off the mark to get before a sheriff to obtain an interim recall of the suspension. If this cannot be done fast, there may be little point in appealing at all, depending upon the severity of the sanction.

So the decision in the case of Lidl UK GmbH v Glasgow Licensing Board (Glasgow Sheriff Court, 4 November 2011, unreported) was eagerly awaited. The facts were straightforward. Ten stores in an area were selected for test purchasing. The Lidl duty manager sold alcohol to a 16-year-old test purchaser. The board found that grounds for review had been established, based on the licensing objective of preventing crime and disorder. The premises licence was suspended for a period of two weeks. Lidl appealed.

Robust enough?

Refusing the appeal, the learned sheriff made a number of points. Some are easier to follow than others. He was referred to Co-operative Group Food Ltd v Inverclyde Licensing Board (2010) 46 SLLP 6. In that case, Sheriff Principal Kerr held that a single instance of a failed test purchase, without any other adverse circumstances, was insufficient to establish a ground for review. Sheriff Mitchell in Lidl distinguished the Co-op case. In that case, he said, a cashier, under difficult circumstances, had made an error of judgment. Those facts, he said, were “very different and distinguishable”.

It had been argued strongly, on behalf of the pursuer, that the Lidl training systems and procedures were robust. The board had failed to make any express criticism of the Lidl system, nor had it highlighted any fundamental system failure. The board, counsel argued, had applied a strict liability test.

The sheriff disagreed. The facts, he said, disclosed a serious defect in the premises licence holder’s system. The duty manager who made the sale was himself meant to supervise other more junior staff. The defect was that “there was no failsafe check when the duty manager was selling alcohol to the public”.

Demands of justice

If one views this from the licence holder’s point of view, the distinction is not immediately obvious to me. No particular flaw in the system per se was identified – the only flaw was that a sale took place. Many of my clients spend hundreds of hours and tens of thousands of pounds per store. If the licence can be suspended simply because of one human error, one wonders whether the resources should be better expended – on insurance, perhaps? This is strict liability by any other name.

When one pauses to quantify the effects of a suspension, it is galling to see such counsels of perfection being applied in many (though thankfully not all) boards through the land. By all means root out the bad apples, and target those who ignore the law. Undoubtedly the law should have teeth to penalise bad practice and deter others from slapdash ways. But failing to recognise good practice, as applies in stores like Lidl, does nothing to affect Scotland’s “bevvy culture”, and does less for anyone who believes in old fashioned principles of justice and fairness.

I am pleased to learn Lidl are appealing to the Court of Session – unlike Admiral Byng, they will get a second shot.

The Author
Tom Johnston Young & Partners LLP, Dunfermline and Glasgow
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