The return of Vicarious Liability
The Criminal Justice and Licensing Bill was passed by the Scottish Parliament on 30 June 2010. We are now in the four week period where legal challenges can be made and thereafter the Bill will be sent by the Presiding Officer to Buckingham Palace for Royal Assent. Expect another raft of statutory instruments to add to the pile, but pay close attention to the new section 141B- Vicarious liability of premises licence holders and interested parties.
This new section means that where a person, while acting as an agent or employee of the premises licence holder or indeed an interested party, commits an offence on licensed premises proceedings can be taken against the premises licence holder or the interested party. This expands the current position on liability substantially. The defence that is open to the premises licence holder or the interested party is that they did not know that the offence was being committed by the employee or agent and all due diligence was exercised to prevent the offence being committed.
So, who is an interested party? Section 147 is expanded with a new definition. A person is an "interested party" in relation to licensed premises if they are not the premises licence holder nor the premises manager, but they have an interest in the premises as an" owner or tenant" or they have "management and control over the premises or the business carried on on the premises".
It is difficult to predict how this section will work in practice and whether we will see not only the directors of Pub Cos facing charges but also how far the Board's interpretation of "management and control" of a premises, or the business carried on therein will go.
How to avoid another £500 fine
Changes to the 2005 Act being brought in under the Criminal Justice and Licensing (Scotland) Act 2010 (when it receives Royal Assent) include a new section 40A - Connected persons and interested parties: licence holder's duty to notify changes. This creates a new obligation for a premises licence holder to give notice to the Licensing Board where a connected person or interested party leaves or joins. Notice must be given within one month of the departure or assumption. Where a person becomes a connected person or an interested party, their name, address and date of birth (if they are in individual) must be provided. Failure to notify the Licensing Board of changes to the make up of a board of directors of a premises licence holder could result in a fine of up to £500.
Another thing for premises licence holders to watch out for.
