Appellant:  C Mitchell;  The Robert Kerr Partnership, Paisley

Respondent:  Fairley QC AD;  Crown Agent

1 July 2014

[1]        In this case the appellant, a shop owner, was convicted of allowing alcohol to be sold to a young person contrary to section 103 of the Licensing (Scotland) Act 2005 and, allowing alcohol to be sold by a young person contrary to section 107 of the 2005 Act.  The offences arose out the sale of a pack of Stella Artois cider by the appellant’s 16‑year‑old assistant LG to an underage “authorised test purchaser” JH aged 16. 

[2]        In the course of the evidence, it emerged that LG had been told by the appellant that if a customer wanted to purchase alcohol or cigarettes she should ask for identification for proof of age, and should go and get the appellant.  She had also been told not to sell alcohol to persons if they were under 21.  There was also evidence that when alcohol was scanned through the cash desk, two buttons became operational asking about the purchaser’s age and proof of age.

[3]        LG in evidence acknowledged all of these instructions.  She explained that she had received these instructions, that she knew what she should do, and that she knew that she should go and get the appellant.  However, on this occasion, she looked at the queue and pressed the “yes” button, thus putting the sale through.

[4]        There was no evidence that this sort of situation had arisen before.  The appellant (who was representing himself) gave evidence about the checking system he had put in place, the instructions which he had given his staff (including LG) and the fact that the incident was an isolated one.

[5]        Against that background, while the justice’s personal view was that a more robust practice should have been in place, the fact is that on the evidence this was apparently a one-off incident, of which the appellant was unaware at the time, and also there was a system in place to prevent underage buying or selling of alcohol.  Both sections 103 and 107 of the 2005 Act permit a defence of “due diligence” in terms of section 141A of that Act.  We acknowledge that this part of the legislation appears not to have been specifically drawn to the justice’s attention.  Indeed we extend sympathy to the justice for several reasons:  (1) the complexity of the legislation and its amendments;  (2) a party litigant presenting his own defence who did not draw attention to section 141A;  (3) the Crown’s apparent failure specifically to mention section 141A;  (4) the fact that the justice’s legal assessor does not appear to have drawn his attention to that section.  Nevertheless that section exists and applies, and we have to acknowledge that the evidence led in the course of the trial established that the appellant was not aware of the sale and also that he had, in our view, exercised due diligence by placing the system we have described in action.

[6]        The advocate depute drew our attention to Epic Group Scotland v Shanks 2014 SCCR 230 (a case concerning a nightclub).  He sought to distinguish that case by pointing out that in the present case one could say that there had been a failure in training, a failure in supervision and generally a systemic failure.  However in our view, in relation to an off‑licence shop such as appellant’s, it has not been established that there was some failure in training or in supervision.

[7]        In all the circumstances we consider that the defence of due diligence in terms of section 141A was made out. Accordingly we answer the questions at page 13 of the stated case as follows:  Question 1, in the negative, and Question 2 in the negative.  In the result, we allow the appeal and quash the conviction.