Scottish High Court of Justiciary Decisons

ALISTAIR JAMES SHEPHERD v. PROCURATOR FISCAL, DORNOCH [1999] ScotHC 109 (12th May, 1999)

This is the appeal of Alistair James Shepherd, who was convicted of a contravention of section 77 of the Licensing (Scotland) Act 1976, as the licence holder being drunk on the premises. The appeal was originally against both conviction and sentence, but Mr Duguid on the appellant's behalf today has abandoned the appeal against conviction. As far as the sentence was concerned, the appellant was fined £400. Mr Duguid argued that he has been in the licensing trade since 1984, has been a licensee since 1990 and has no previous convictions. As a result of the commission of this offence, his extension hours were withdrawn for a period but they have now been restored. The appellant is 44 years of age and married with three children. The Justice was told that his earnings from the business were in the region of £10,000 per year. Mr Duguid argued that the maximum sentence was one of £1,000 and therefore, this fine was approaching half of the maximum which he submitted was excessive in all the circumstances. The Justice, of course, would not be aware of the fact that the extension hours were withdrawn for a period, although the Justice did take into account the possibility at least that the Licensing Board might decide to withdraw the licence altogether. In our view, it would be difficult to say that this fine was so large as to be excessive in the circumstances. It is very much a matter within the discretion of a local Justice to decide what is the appropriate figure to impose in a case of this nature and it certainly cannot be suggested that having regard to the earnings of the appellant that the fine was one which was substantially beyond his means. In the whole circumstances therefore, while it may be that the fine might appear to be slightly on the high side, we are not in a position to say that it was excessive and accordingly this appeal must be refused.

AUD