An off-licence owner who allowed alcohol to be sold to an under-age test purchaser in a “one-off incident” has won an appeal against his conviction.

Terrence Feeney was convicted of allowing alcohol to be sold contrary to sections 103 and 107 of the Licensing (Scotland) Act 2005.

If you operate an off-sales premise, you will be aware of the fairly frequent use by the police of underage test purchasers. In this instance, the test purchaser was asked to purchase a pack of Stella Artois Cidre. The alcohol was sold by a 16 year old assistant at the premises to a 16 year old test purchaser.

The off-licence owner had given instructions to his underage assistants not to sell alcohol to anyone under the age of 21. If a customer wanted to purchase alcohol or cigarettes, the assistant should ask for identification of proof of age and get the off-licence owner. Furthermore, when alcohol was scanned through the cash desk, the till operator was prompted to ask about the purchaser’s age and proof of identification. The shop assistant acknowledged that she had received these instructions and acknowledged that she hadn’t followed procedures and had simply pressed the approved button to put the sale through.

The appeal judges observed that, on evidence, it was apparently a one-off incident and the off-licence holder had a previously good record. The off-licence owner was unaware at the time of the offence and had put good systems in place to prevent underage purchase or sale of alcohol. The court’s view therefore was that, due to these systems and procedures, Mr Feeney had exercised what is known as “due diligence” by trying to prevent an offence taking place. He therefore won the appeal and his conviction was quashed.

This case will come as a welcome relief to many off-licence holders who have put in robust systems that perhaps in similar one-off incidents are not followed by staff.

If you do require assistance in connection with any licensing matter, please do not hesitate to contact us.

September 10, 2014