Lidl overturns Glasgow Licensing Board's underage sales ban

In its judgment, the Inner House of the Court of Session said that it was not the purpose of the licensing laws to punish a licence holder financially where it had used 'due diligence' to prevent underage sales.

Scottish licensing boards have the power to suspend, revoke or vary a premises license only where it is "necessary and appropriate" to do so.

"The process of review is essentially forward looking," the judges said. "It involves examining whether the continuance of the particular premises licence in issue ... would be inconsistent with endeavouring to achieve the licensing objective in question. The process of review is therefore not directed to imposing a penalty in respect of some past event which is not likely to recur to an extent liable to jeopardise the licensing objective."

The court came to the "virtually inevitable inference" that the store's licence was suspended to "impose a financial penalty ... on the sole basis that one employee had departed on a single instance from the employers' procedures and instructions", they said.

The store was given the ban after duty manager Gary Singleton sold a bottle of wine to a 16-year-old 'test purchaser' in February 2011, without asking to see any proof of age. The teenager had been sent into various shops by Strathclyde Police following reports of underage drinking in the area, but the sale was refused elsewhere.

Lidl operated a 'Challenge 21' policy which meant that Singleton, who also held a personal licence to sell alcohol in the store, should have asked to see proof of age if he suspected that the purchaser was underage. Singleton was sacked by the company for his "clear departure from [Lidl's] policies and procedures". A later test purchase in the same Lidl store was subsequently refused.

"It is clear that all that had occurred was that on the single occasion of the first test purchase on 18 February 2011 a young person had been sold a bottle of rosé wine without having been challenged as to his or her age," the judges said. "[Glasgow Licensing Board acknowledged] there was no information before them of 'any intelligence or other information to suggest that alcohol had previously been sold to persons under the age of 18 at these premises' ... The second test purchase exercise on 3 March 2011 was, of course, met with a challenge to the purchaser's age and a refusal to sell."

Lidl had "promptly investigated matters" once they had been made aware of the underage sale by Strathclyde Police, the judges said. They had also "instantly dismissed" Singleton and put all their other employees through an additional training programme, they said.

Licensing law expert Frances Ennis of Pinsent Masons, the law firm behind Out-Law.com, said that the decision "serves as a reminder of the importance of proper training" for those involved in making decisions related to licensing.

"The vast majority of licence holders take their responsibilities seriously and invest significant time and expense in ensuring that they meet their obligations," she said. "Where that is the case, it is absolutely crucial that Boards are seen to support local businesses, particularly in these tough economic times."