APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lady Clark of Calton Lord Clarke	[2014] HCJAC 20 XJ875/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   THE EPIC GROUP SCOTLAND LIMITED   Appellant;   against   PROCURATOR FISCAL, ABERDEEN   Respondent:   _____________

 

Appellant: McCall; Capital Defence

Respondent: Di Rollo AD; Crown Agent

 

19 February 2014

 

[1] The appellant was convicted, at Aberdeen Justice of the Peace Court, of the following charge:

"on 3 March 2012 at Prohibition, 31 Langstane Place, Aberdeen you The Epic Group Scotland Limited, being the holder of the premises licence did sell alcohol to RL, born 9 May 1994 and MW, born 1 June 1994, all c/o Grampian Police, Queen Street, Aberdeen, all of whom were a child or a young person under the age of 18 years contrary to the Licensing (Scotland) Act 2005, section 102(1)"

 

and fined a sum of £1,000.

[2] Prohibition is a nightclub in Aberdeen. The appellants held a premises licence at the relevant time. Its employee, Richard Bruce, the general manager, held a personal license in respect of the sale of alcohol. Under section 141B of the 2005 Act it is a defence for a licence holder charged, as in the present case, on the basis that it is vicariously responsible for the offence that was committed, to prove that the offence occurred without its knowledge and that it had exercised all due diligence to prevent the occurrence. It is not disputed that it is proved that the two young women named in the charge had been sold alcohol within Prohibition on 3 March 2012 or that the appellant company did not know of the sale. The issue for the justice was whether or not the appellant had exercised all due diligence to prevent the sales occurring.

[3] On the night in question RL had deliberately dressed to look older than her real age. She was wearing sophisticated clothes, she was wearing a red lace top, a high waisted skirt and high heels. MW had similarly deliberately dressed to look older than her real age. She was wearing a see-through top, leopard skin leggings, a top which just reached the top of her leggings and high heels. Both girls had done their hair to make themselves look older. Neither girl was asked for identification, either to gain access to the club or when within it. There was evidence from PC Christopher Taylor, which was accepted by the justice, that when he saw RL at 2 am at McDonalds in Union Street he would not have been surprised if she had been in licensed premises earlier and he thought she was 18 years old.

[4] In findings in fact 2 and 3 the justice deals with the training of staff at Prohibition. He found they operated a system that was designed to prevent those aged under 25 years gaining entry to the club or being sold alcohol without first having to prove their age. He found that they had "received the requisite training package in relation to legislation surrounding the sale of alcohol to minors". The pack included a policy known as the "Challenge 25" policy, which required staff to require identification of anyone who appeared to be under 25 years of age. "Challenge 25" posters were displayed in the premises. The policy provided for challenge at three levels: namely by door staff, by floor stewards and by bar staff. All three categories of employee were told to ask for documentary proof of age if anyone seen to enter or within the premises appeared to be under 25. The justice also found that all staff were "appropriately trained". That training included being aware that it is very difficult to judge the age of a young person. Pages 53 to 61 of the training material were designed to highlight to staff just how misleading the appearance of a young person can be when it comes to assessing their age. Staff were told that if they were in any doubt they should ask for proof of age and were instructed to be vigilant for underage drinking.

[5] Richard Bruce spoke to spending about 80% of his time on Friday night at the door checking ages and the remaining time walking around the inside of the premises. He stated that if he saw anyone under 18 on the premises he would do something about it. He explained that "Challenge 25" fixed the age of 25 for requesting proof of age because of the difficulties in judging age. He gave evidence about the contracts of employment that applied to staff: they provided for gross misconduct and gross negligence - such as in relation to selling alcohol to someone who was underage - would be an example of that. A member of staff committing such gross negligence would be likely to lose their job. His evidence was accepted as credible and "mostly reliable", although the justice does not state in what specific respect or respects he did not find his evidence to be reliable. The qualification as to reliability appears to have been because the justice considered that the witness did not appreciate the extent of his responsibilities and did not indicate what he had done to prevent a recurrence. However, the justice also notes that neither of those were matters which were put to the witness by the court or by either party. That is, the witness does not appear to have been asked any questions directed to showing whether or not he appreciated the extent of his licensing responsibilities or to show whether he had, after 3 March 2012, taken steps to tighten up the operation of the policy and, if so, what steps. Richard Bruce also accepted that on a busy Friday night there was a possibility of underage persons getting into the club.

[6] Turning to the justice's reasons, he had no criticisms of the policy that had been adopted by the appellant regarding underage drinking. He accepted that it was designed to avoid such sales occurring and he accepted that it was in place. However, he considered that the policy also "required to be effective and seen to be working" at paragraph 63, and he was not satisfied that that was the case. His reasons for so concluding seem to have been, first, that if the policy had been working as it was designed to do, then RL, MW and two younger girls who were with them would have been challenged at the door, by the floor stewards, or by the bar staff, but they were not. Second, that indicated that the policy was not operating effectively. Third, that showed that there was no evidence that training and policies were followed through and put into practice by the staff. The staff ought to have been better supervised. Fourth, the appellants ought to have anticipated the possibility of young persons dressing to appear older and should have ensured that their system stopped such persons from gaining entry. Fifth, that all showed that there were multiple failings in the appellant's system.

 

Submissions on Appeal

[7] Before us today Ms McCall submitted that the justice had fallen into such error that he had reached a decision that no reasonable justice could, in the circumstances, have reached. Essentially a part of her submission was that the justice had not asked himself the correct question: namely whether the employer of those who had sold the alcohol to these young women had exercised all due diligence and there was sufficient evidence to show that that had been done.

[8] The appeal was opposed on behalf of the Crown by the Advocate depute. Although the justice was dealing with a single incident here there was material that provided a context that allowed him to find that the defence of due diligence was not made out. There were significant failures here; repeated sales of alcohol to these young women had been made on the night in question. She was not suggesting this was an offence of strict liability but it was not enough just to have policies, training and practice if it was not applied in practice.

 

Decision

[9] Turning to our decision, in all the circumstances we are satisfied that the justice failed to direct himself as to the correct test here: namely did the employer exercise all due diligence. He thus reached a conclusion which no reasonable justice could, on the evidence and the findings in fact made have reached. In particular he failed to recognise, in our opinion, that the system which was proved by means of the training documents, the joint minute, and the evidence of Richard Bruce, was sufficient to satisfy the statutory test of due diligence on the part of the employer. The system provided for three different categories of employee having the relevant "Challenge 25" responsibilities and the justice was satisfied that they all received appropriate training. His approach, ultimately, appears however to have been to the effect that the fact that the young women were not challenged shows that due diligence was not employed. We cannot accept that that is a legitimate approach to adopt since, quite apart from anything else, it could equally have been that the failure of all three levels of check was because these young women had deliberately dressed themselves up so as to overcome the "Challenge 25" hurdle. The justice suggests that those charged with the responsibility should in turn have been supervised, but there are no findings in fact to show what difference that would have made. In any event the question for the justice was not whether some other step could have been taken. No doubt some other step can always, in retrospect, be identified. That does not, of itself, however, show that the statutory test of due diligence has not been met. Also, there was nothing in the evidence to show that the appellants should have been aware of some failure by Richard Bruce who they had appointed to have general manager responsibilities and who himself had licence holder duties. There was no evidence of a history of problems with underage drinking in the club. The evidence related to a problem on one evening only. Further, the issue for the justice was whether or not all due diligence had been applied in an effort to prevent underage drinking, not what remedial steps were taken thereafter. In any event, it was not open to the justice to infer, as he seems to have done, from the absence of any evidence about that matter that no steps were taken. The absence of evidence on a matter is not, as was submitted by Ms McCall, evidence of absence. It does not prove the opposite.

[10] In these circumstances we are satisfied that this appeal should be upheld. We answer the questions in the stated case as proposed by Ms McCall: question 1 is answered in the negative and question 4 in the affirmative. The other questions are, in these circumstances, superseded.