Vicarious Responsibility– Here we go Again
The next stage of alcohol reform is going through the Holyrood Parliament. It will have significant impact on all convenience store operators. Licensing and business law expert Tom Johnston of Young & Partners, Glasgow and Dunfermline, is legal adviser to SGF. He explains some of the implications for the trade
Just when you thought you had got the hang of the new law, more change comes along. In fact it is coming in two stages. Holyrood is still dithering over the Alcohol etc (Scotland) Bill, which contains the controversial minimum pricing proposals. In the meantime, the Criminal Justice and Licensing Bill has completed Stage 3, and will soon become law. One of the most serious issues for the trade is the return of the legal doctrine known as “vicarious responsibility” (now often referred to, incorrectly, as vicarious liability). This is not new. The concept has been in licensing legislation for years until it disappeared on 1 September 2009. Under the 1976 Act it meant that a licensee could be prosecuted for certain acts or omissions of his staff, including sales out of hours or to those under age.
At present you can only be prosecuted if you perform such an act “knowingly”. That is about to change. It is important to appreciate that the range of people who can be prosecuted is much wider than simply the licensee. The list includes “any interested party”, defined as anyone apart from the holder of the premises licence or the premises manager, who “has management and control over the premises or the business carried on on the premises.” That is a fairly wide list. It would certainly include company directors and shadow directors. But the list goes even further. Any person who “has an interest in the premises as an owner or tenant” may also find himself in the dock. There is, as before, a defence if the person charged can prove that he (a) did not know that the offence was being committed, and (b) exercised all due diligence to prevent the offence being committed.
My next article will look at due diligence in some more detail. In the meantime, there are various obvious dangers. There is now a much greater likelihood of prosecutions proceeding than there was before. What steps you can take? If you currently hold a licence for a business which is being operated by a third party, you should review that immediately. All operators must look closely at their existing training and review systems and ensure that these are robust and kept up to date. As lines between ownership and control seem to be more blurred than ever, you would be wise to examine your business models and structure. At present I have no idea what “due diligence” measures will be necessary for a property owner who lets a shop to an unrelated convenience store operator, but we will give more thought to that next time. For now, be afraid, be very afraid.