Loophole Could Allow Criminals An Alcohol Licence

Ministers plan to change the alcohol licensing legislation following fears that criminals could be granted licences because of a loophole in the law.

However, thousands of applications for pubs and off-licences have already gone through the police vetting process which officers say is flawed. The fear is that some licences may already have been given to people deemed unsuitable by the police.

Under the 2005 Licensing Act, chief constables lost the right to object on the grounds that the applicant was not a fit and proper person and can now only provide local licensing boards with information about relevant convictions and information relating to serious and organised crime.

Senior officers are concerned the process now omits information about those with pending court cases and intelligence that has not yet led to a conviction.

Under the 1976 act, the legislation that established licensing boards, chief constables had the power to object on what were seen as subjective grounds.

The Nicholson committee raised concerns about this and under the 2005 act the power of the chief constable was restricted. One officer said: “We can tell them if the applicant has been convicted of a relevant offence but someone could have been charged and not yet appeared in court. They could have murdered or raped someone and if the case is pending then we could not tell the licensing board about it. This issue of pending cases is a real concern.

“There may also be issues which are better dealt with by the board than by the criminal justice system and this is limited under the new act.

“There may be things relating to underage drink sales – which is a really big concern for police forces across the country – but the procurators-fiscal may decide this is best dealt with by the board but we cannot advise them on this.

“Our partnership with the boards has been restricted by this legislation. We have already gone through half the applications.

“The next batch will be done by October and the final batch by next January. By then the changes to the legislation will be too late. Under the new act the premises licence is indefinite so these could run for decades.”

The legislation is seen as key to the government’s plans to tackle Scotland’s appalling record on alcohol misuse.

It followed on from the report of the committee of Sheriff Principal Gordon Nicholson, which reported five years ago in favour of toughening licensing conditions and their enforcement, while encouraging more responsible drinking.

This was to be done in part by giving licensing boards greater flexibility over deciding which licensed premises – pubs and clubs or off-licences – should get extensions to normal hours based on local knowledge of each particular situation.

By the time the recommendations had been transformed into statute, however, the legislation was criticised for being piecemeal and inconsistent.

Speaking exclusively to The Herald, Kenny MacAskill, the Justice Secretary, revealed it is now under review.

“These matters are being reviewed because there are glitches coming through in the licensing act,” he said. “We are aware of problems that the licensing trade is facing. The act is not perfect. This is not a question of casting blame but all legislation has glitches which come out.

“When it was passed in parliament in 2005 this was not anticipated, so we are seeking to tweak it and improve it and sort out any unforeseen consequences that have arisen as a result of it.”

Senior officers are keen to change the legislation.

Assistant Chief Constable William Skelly, the Association of Chief Police Officers in Scotland (Acpos) spokesman on licensing, said: “Acpos was concerned during the passage of the 2005 act when powers that had existed in the 1976 act, specifically those in relation to the ability of a chief constable to raise competent objections, were severely restricted.

“Our view has always been that, in the interests of preventing crime and disorder, securing public safety, preventing public nuisance and protecting children from harm, a chief constable should have the power to object.

“In essence, we are seeking the repeal of subsection 22 (2) from the 2005 Act in a forthcoming Criminal Justice Bill.

“We have had encouraging discussions with the Cabinet Secretary for Justice and his colleagues on this issue, and related licensing matters, and are positive about the chances of effecting this change.

“In addition, we view the current discussion paper on changing Scotland’s approach to alcohol as a welcome dialogue that has the promise of making Scotland a healthier and safer place.”