(1) Subsection (2) applies where a person (“the offender”) is convicted of an offence under subsection (A1) or (2) of section 7 in relation to a relevant article—
(a) seized by virtue of a warrant granted under section 27E(2); or
(b) in the offender's possession or control at the relevant time.
(2) The court by which the offender is convicted may make an order for forfeiture (a “forfeiture order”) in respect of the relevant article.
(3) The court may make a forfeiture order—
(a) whether or not it also deals with the offender in respect of the offence in any other way; and
(b) without regard to any restrictions on forfeiture in any enactment.
(4) In considering whether to make a forfeiture order, the court must have regard to—
(a) the value of the relevant article; and
(b) the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).
(5) In this section—
“relevant article” means an article mentioned in any of paragraphs (a) to (d) of subsection (2) of section 27A;
“relevant time” means—
the time of the offender's arrest for the offence; or
the time of his being cited as an accused in respect of the offence.
(1) A forfeiture order under section 27J(2) operates to deprive the offender of any rights he has in the property to which it relates.
(2) The property to which a forfeiture order relates must be taken into the possession of the police.
(3) The court by which the offender is convicted may, on the application of a person who—
(a) claims property to which a forfeiture order relates; but
(b) is not the offender from whom it was forfeited,
make an order (a “recovery order”) for delivery of the property to the applicant if it appears to the court that he owns it.
(4) An application under subsection (3) must be made—
(a) in such manner as may be prescribed by Act of Adjournal; and
(b) before the end of the period of 6 months beginning with the date on which the forfeiture order was made.
(5) An application may be granted only if the applicant satisfies the court that—
(a) he had not consented to the offender's having possession of the property; or
(b) he did not know, and had no reason to suspect, that the offence was likely to be committed.
(6) If a person has a right to recover property which, by virtue of a recovery order, is in the possession of another, that right—
(a) is not affected by the making of the recovery order at any time before the end of the period of 6 months beginning with the day on which the order is made;
(b) is lost at the end of that period.
(7) The Scottish Ministers may by order make provision for or in connection with the disposal of property forfeited under a forfeiture order in cases where—
(a) no application under subsection (3) has been made before the end of the 6 month period beginning with the day on which the forfeiture order was made; or
(b) no such application has succeeded.
(8) An order under subsection (7) may in particular make provision for—
(a) dealing with any proceeds from the disposal;
(b) investing money; and
(c) auditing accounts.
Where an offence committed by a partnership under—
(a) section 5 (in so far as the offence relates to a knife dealer's licence);
(b) section 7 (in so far as the offence so relates);
(c) section 27D;
(d) section 27F; or
(e) section 27G,
is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, the partner as well as the partnership is guilty of the offence and is liable to be proceeded against and punished accordingly.
Where a person carries on a business which—
(a) by virtue of section 24 requires a second-hand dealer's licence; and
(b) by virtue of section 27A requires a knife dealer's licence,
the person requires the appropriate licence in respect of each activity.
(1) This section applies where, in connection with the sale of an article mentioned in section 27A(2)—
(a) the premises (the “relevant premises”) from which the article is dispatched in pursuance of the sale are not the same as those where the order for the article is taken (the “sale premises”),
(b) the relevant premises are in Scotland, and
(c) the sale premises are not in Scotland.
(2) For the purposes of this Act the sale of the article is to be treated as taking place on the relevant premises.
27P Sales and dispatches in different local authority areas
(1) Subsection (2) applies where, in connection with the sale of an article mentioned in section 27A(2)—
(a) the relevant premises are situated in the area of a local authority, and
(b) the sale premises are situated in the area of another local authority which, by virtue of section 2(2), is the licensing authority in respect of the taking of the order for the article.
(2) For the purposes of this Act, the sale of the article is to be treated as taking place—
(a) on the relevant premises, and
(b) on the sale premises.
(3) In this section, “relevant premises” and “sale premises” have the same meanings as in section 27N.
27Q Duty to avoid conflict between conditions of licences
(1) Subsection (2) applies where an application is made to a licensing authority for the grant or renewal of a second-hand dealer's licence by the holder of a knife dealer's licence issued by that authority.
(2) In granting the application, the licensing authority must not impose any condition which conflicts, or is inconsistent, with a condition of the knife dealer's licence.
(3) Subsection (4) applies where an application is made to a licensing authority for the grant or renewal of a knife dealer's licence by the holder of a second-hand dealer's licence issued by that authority.
(4) In granting the application, the licensing authority must, in accordance with paragraph 10 of Schedule 1, vary the terms and conditions of the second-hand dealer's licence to avoid any conflict or inconsistency with the terms or conditions of the knife-dealer's licence.
27R Offences in relation to knife dealers' licences: exceptions
The Scottish Ministers may by order provide that an offence under—
(a) section 5 (in so far as the offence relates to a knife dealer's licence);
(b) section 7 (in so far as the offence so relates);
(c) section 27D;
(d) section 27F; or
(e) section 27G,
is subject to such exceptions as may be specified in the order.
(1) Any power conferred by section 27A(7), 27A(8), 27C(1)(a), 27K(7) or 27R to make orders is exercisable by statutory instrument.
(2) Subject to subsection (3), a statutory instrument containing an order under any of those sections is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(3) A statutory instrument containing an order under section 27R may not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
(1) A “metal dealer’s licence”, shall be required for carrying on business as a metal dealer.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) A metal dealer’s licence shall, in addition to specifying the activity which he engages in, specify the premises in or from which the activity is to be carried on.
(1) A licence, to be known as an “itinerant metal dealer’s licence” shall be required for carrying on business as an itinerant metal dealer.
(2) An itinerant metal dealer’s licence shall have effect so as to permit the licence holder to carry on business as an itinerant metal dealer anywhere in Scotland.
(1) A metal dealer or an itinerant metal dealer may pay for metal only by a method of payment specified in subsection (2).
(2) The methods of payment are—
(a) by means of a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or
(b) by electronic transfer of funds to a bank or building society account in the name of the payee.
(3) If a metal dealer or an itinerant metal dealer pays for metal otherwise than in accordance with subsection (1), the dealer and each of the persons listed in subsection (4) (if any) commit an offence.
(4) The persons are—
(a) in a case of payment being made by a metal dealer at a place of business of the dealer, the person with day to day management of the place,
(b) in any case, any person who, acting on behalf of the metal dealer or the itinerant metal dealer, makes the payment.
(5) It is a defence for a metal dealer, an itinerant metal dealer or a person described in subsection (4)(a) who is charged with an offence under this section to prove that the dealer or, as the case may be, person—
(a) made arrangements to ensure that the payment was to be made only in accordance with subsection (1), and
(b) took all reasonable steps to ensure that those arrangements were complied with.
(6) A person who commits an offence under this section is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
(7) The Scottish Ministers may by regulations—
(a) amend subsection (2) so as to add, amend or remove methods of payment, and
(b) make such consequential modification of section 33B or 33C(3) as they consider appropriate.
(8) Regulations under subsection (7) are subject to the affirmative procedure.
(9) In this section, “place of business” means a place of business operated by a metal dealer in the ordinary course of that dealer's business as a metal dealer.
33B Acceptable forms of payment: meaning of “bank or building society account”
(1) In section 33A(2)(b), “bank or building society account” means an account held with a bank or a building society.
(2) For the purposes of subsections (1) and (4)—
(a) “bank” means an authorised deposit-taker that has its head office or a branch in the United Kingdom, and
(b) “building society” has the same meaning as in the Building Societies Act 1986.
(3) In subsection (2)(a), “authorised deposit-taker” means—
(a) a person who has permission to accept deposits under Part 4A of the Financial Services and Markets Act 2000 (but see subsection (4) for exclusions),
(b) an EEA firm of the kind mention in paragraph 5(b) of Schedule 3 to that Act that has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule).
(4) The reference in subsection (3)(a) to a person who has permission to accept deposits under Part 4A of the Financial Services and Markets Act 2000 does not include—
(a) a building society,
(b) a society registered as a credit union under the Co-operative and Community Benefit Societies Act 2014 or the Credit Unions (Northern Ireland) Order 1985 (S.I. 1985/1205 (N.I. 12)),
(c) a friendly society within the meaning given by section 116 of the Friendly Societies Act 1992, or
(d) an insurance company within the meaning of section 275 of the Finance Act 2004.
(1) This section applies where a metal dealer or an itinerant metal dealer (“the dealer”), in the course of the dealer's business—
(a) acquires any metal (whether or not for value), or
(b) processes or disposes of any metal (by any means).
(2) In respect of any metal acquired, the dealer must record the following information—
(a) the description and weight of the metal,
(b) the date and time of the acquisition of the metal,
(c) if the metal is acquired from another person—
(i) the name and address of the person,
(ii) the means by which the person's name and address was verified,
(d) the price, if any, payable in respect of the acquisition of the metal, if that price has been ascertained at the time when the entry in the record relating to that metal is to be made,
(e) the method of payment of the price (if applicable),
(f) where no price is payable for the metal, the value of the metal at the time when the entry is to be made as estimated by the dealer,
(g) in the case of metal delivered to the dealer by means of a vehicle, the registration mark (within the meaning of section 23 of the Vehicle Excise and Registration Act 1994) borne by the vehicle.
(3) Where the dealer has paid for metal, the dealer must keep a copy of—
(a) the cheque, or
(b) the document evidencing the electronic transfer of funds.
(4) In respect of any metal processed or disposed of, the dealer must record the following information—
(a) the description and weight of the metal immediately before its processing or disposal,
(b) in the case of metal which is processed, the process applied,
(c) in the case of metal disposed of by sale or exchange—
(i) the consideration for which it is sold or exchanged,
(ii) the name and address of the person to whom the metal is sold or with whom it is exchanged, and
(iii) the means by which the person's name and address was verified,
(d) in the case of metal disposed of otherwise than by sale or exchange, its value immediately before its disposal as estimated by the dealer.
(5) The dealer must—
(a) keep separate records in relation to—
(i) metal acquired, and
(ii) metal processed or disposed of,
(b) record the information immediately after the metal is acquired, processed or disposed of,
(c) keep a copy of any document produced by a person to verify that person's name or address, and
(d) retain information recorded or documents kept under this section for a period of not less than 3 years beginning with the date on which the information was recorded or document obtained.
(6) The Scottish Ministers may by regulations––
(a) specify the means by which a person's name and address may be verified for the purposes of this section,
(b) require further information to be recorded about any metal acquired, processed or disposed of by metal dealers or itinerant metal dealers.
(7) Regulations under subsection (6)—
(a) may make different provision for different purposes, and
(b) are subject to the negative procedure.
(1) A metal dealer or an itinerant metal dealer (“a dealer”) must record the required information—
(a) in books with serially numbered pages, or
(b) by means of a device for storing and processing information.
(2) Where a dealer records the required information in books, the dealer must use separate books for recording the required information about—
(a) metal acquired, and
(b) metal processed or disposed of.
(3) Where a dealer uses a device for storing and processing information, the dealer must, by means of the device or otherwise, keep details of all modifications made in the records kept by the device.
(4) Where a dealer is required to keep a copy of a document under section 33C, it is sufficient for the dealer—
(a) to keep an electronic copy of the document, and
(b) in relation to a document verifying a person's name or address, keep only one copy of the document.
(5) In this section, “required information” means the information about metal acquired, processed or disposed of that a dealer is required to record under or by virtue of section 33C(2), (4) or (6).
33E Metal dealer to keep records for each place of business
(1) A metal dealer must keep separate records of the required information in relation to—
(a) each place of business operated by the dealer, and
(b) any metal acquired, processed or disposed of otherwise than at such a place of business.
(2) Where a metal dealer records the required information in books, the dealer must not, at any time at a place of business, use more than—
(a) one book for recording the required information about metal acquired, and
(b) one book for recording the required information about metal processed or disposed of.
(3) In this section—
“place of business” means a place of business operated by a metal dealer in the ordinary course of that dealer's business as a metal dealer,
“required information” means the information about metal acquired, processed or disposed of that a dealer is required to record under or by virtue of section 33C(2), (4) or (6).
(1) Any metal dealer or itinerant metal dealer who disposes of metal to a person apparently under the age of 16 or who acquires metal from such a person, whether that person is acting on his own behalf or on behalf of another person, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
(2) In any proceedings for an offence under subsection (1) above, it shall be a defence to prove that the person to whom it is alleged the metal was disposed of or from whom it is alleged it was acquired was 16 years of age or over at the time.
(2A) Any metal dealer or itinerant metal dealer who fails to comply with a requirement of section 33C, 33D or 33E commits an offence and is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
(3) Any metal dealer or itinerant metal dealer who knowingly or recklessly produces any information or document which the dealer is required to record or keep under section 33C which is false or misleading in a material particular shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
(4) Any person who, when selling metal to or purchasing metal from a metal dealer or itinerant metal dealer, gives the dealer a false name or address shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
35 Functions of the court in relation to metal dealers convicted of offences.
(1) Where a metal dealer or itinerant metal dealer is convicted of an offence relating to his business as such, the court by which he is convicted may make any order which it is competent to make under section 7(6) of this Act and an extract of such conviction and sentence (if any) shall, within 6 days after the date of the conviction, be transmitted by the clerk of the court to the licensing authority which granted the licence.
(2) Where a metal dealer is convicted—
(a) of an offence relating to his business as such; or
(b) of any offence which in the opinion of the court is an offence involving dishonesty,
the court may, in addition to any other order which it is competent to make, order that he shall not dispose of or process any metal acquired by him until the expiry of a period of 7 days after its acquisition.
(3) In making an order under subsection (2) above, the court shall specify a period not exceeding 2 years for which it is to remain in force, but the court may revoke such an order at any time on the application of the person to whom it relates.
(4) Any person who fails to comply with an order made in relation to him under subsection (2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale or to imprisonment for a period not exceeding 60 days or to both.
(5) A licensing authority receiving, by virtue of subsection (1) above, an extract of conviction and sentence (if any) of an itinerant metal dealer shall notify all other licensing authorities of the particulars of the conviction.
35A Register of metal dealers and itinerant metal dealers
(1) The Scottish Ministers may by regulations make provision for and about the establishment, keeping and maintaining of a register of metal dealers and itinerant metal dealers.
(2) Regulations under subsection (1) may, in particular, make provision—
(a) about who is to keep and maintain the register,
(b) requiring the provision of information to the person who keeps the register,
(c) specifying the information to be included in the register in relation to each person who holds a licence as a metal dealer or itinerant metal dealer,
(d) about the form and publication of the register,
(e) for the charging of fees in such circumstances as may be specified in the regulations.
(3) Regulations under subsection (1) may—
(a) make incidental, supplementary, consequential, transitional, transitory or saving provision,
(b) modify this or any other enactment.
(4) Regulations under subsection (1) which contain provision which adds to, replaces, or omits any part of an Act are subject to the affirmative procedure.
(5) Otherwise, regulations under subsection (1) are subject to the negative procedure.
Where a person carries on business as a second-hand dealer and as a metal dealer and as an itinerant metal dealer or as any two of these kinds of dealer he shall require the appropriate licence in respect of each activity.
(1) In sections 28 to 36 of this Act—
“itinerant metal dealer” means a person who—
carries on a business which consists wholly or substantially of buying or selling for scrap—
metal articles that are old, broken, worn out or defaced, or
partly manufactured articles that are made wholly or partly from metal,
collects articles of the kind described in paragraph (a)(i) and (ii) by means of visits from place to place, and
disposes of such articles without causing them to be kept in a metal store or other premises (including by disposing or giving custody of the articles to a person who keeps a metal store),
“metal” means any metal (including any precious metal) and any alloy of any metals, whether old or new and includes manufactured articles, whether old or new, made wholly or partly of metal, of any of the materials commonly known as hard metal or of cemented or sintered metallic carbides;
“metal dealer” means a person carrying on business in terms of subsection (2) below but does not include an itinerant metal dealer within the meaning of this subsection;
“metal store” means a place where metal is received or kept in the course of a metal dealer’s business;
“processing”, in relation to metal, includes melting down and any process whereby the composition or form of the metal or of any article which is made of the metal is altered so as to make it substantially less identifiable than before the process, and “process” and “processed” shall be construed accordingly.
(2) For the purposes of sections 28 to 36, a person carries on business as a metal dealer if the person—
(a) carries on a business which consists wholly or substantially of buying or selling for scrap—
(i) metal articles that are old, broken, worn out or defaced, or
(ii) partly manufactured articles that are made wholly or partly from metal, or
(b) carries on business as a motor salvage operator (so far as that does not fall within paragraph (a)).
(3) For the purposes of subsection (2)(b), a person carries on business as a motor salvage operator if the person carries on a business which consists wholly or substantially of—
(a) recovering salvageable parts from motor vehicles for re-use or sale and selling or disposing of the rest of the vehicle for scrap,
(b) buying significantly damaged motor vehicles and subsequently repairing and reselling them, or
(c) buying or selling motor vehicles which are to be the subject (whether immediately or upon a subsequent resale) of any of the activities mentioned in paragraphs (a) and (b).
(1) The Scottish Ministers may by regulations make provision specifying circumstances in which the provisions of sections 28 to 37 are not to apply.
(2) Regulations under subsection (1)—
(a) may make transitional, transitory or saving provision,
(b) are subject to the negative procedure.
(1) Subject to the provisions of this section, a licence under this Act, to be known as a “boat hire licence”, shall be required for the use of a vessel, in the course of a trade or business carried on in or from any place within the area of a licensing authority, for the purpose of—
(a) letting it on hire; or
(b) carrying for reward 12 or fewer passengers,
for pleasure, recreational, educational or sporting purposes.
(2) A boat hire licence may relate to one or more vessels or classes of vessel and shall specify—
(a) the vessels or the classes of vessels to which it relates; and
(b) the maximum number of vessels or of each class of vessel which may be used under the licence.
(3) A boat hire licence shall extend to the use of any vessel added to or substituted for a vessel to which the licence relates if—
(a) the additional or substitute vessel is of identical type to a vessel of a class to which the licence relates; and
(b) the maximum number referred to in subsection (2)(b) above is not exceeded.
(4) A boat hire licence shall not be required in respect of the use—
(a) of any vessel in respect of which there is in force a passenger certificate, load line certificate or load line exemption certificate under the Merchant Shipping Act 1995;
(b) for a continuous period of over 24 hours, of any vessel having overnight sleeping accommodation;
(c) of any vessel for the purpose of instruction or training in seamanship;
(d) of any vessel exclusively for fishing in non-tidal waters;
(e) of any vessel—
(i) on any inland waterway; or
(ii) at any harbour
owned or managed by the British Waterways Board; or
(f) of any vessel with the consent of the harbour authority (within the meaning of the Harbours Act 1964) in any harbour owned or managed by them.
(5) Before granting an application to grant or renew a boat hire licence a licensing authority may require the applicant to produce a certificate in respect of each vessel to which the application relates issued by a person appearing to the authority to be suitably qualified for the purpose of issuing such a certificate stating that the vessel is suitably designed, constructed, maintained and equipped and in a safe condition for the purpose for which, and the place or waters in which, it is to be used.
(6) Without prejudice to paragraphs 5(3), 11 and 12 of Schedule 1 to this Act a licensing authority shall—
(a) refuse an application to grant or renew a boat hire licence;
(b) suspend a boat hire licence in accordance with the said paragraph 12,
to the extent that it relates to any vessel which is in their opinion not in a safe condition for the purpose for which, and the place or waters in which, it is to be or, as the case may be, is being used.
(7) Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority, on granting an application for the grant or renewal of a boat hire licence, shall attach conditions—
(a) fixing the maximum number of persons which may be carried in the vessel;
(b) specifying inland waters in their area, the inland waters adjacent to inland waters in their area and the tidal waters within which each vessel or class of vessel to which the application relates may be used.
(8) The holder of a boat hire licence shall effect and maintain in force in relation to every vessel to which the licence relates a policy of insurance to the satisfaction of the licensing authority and complying with subsection (9) below, and shall not reduce the amount or extent of the cover specified in the policy without the prior approval of the authority.
(9) A policy of insurance complies with this subsection if it insures such person, persons, or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by, or arising out of, the use of the vessel.
(10) Any person who, being the holder of a boat hire licence, uses or causes or permits any other person to use a vessel to which the licence relates without having in force in relation to that vessel a policy of insurance in accordance with subsection (8) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
(11) Where—
(a) a vessel in respect of which a boat hire licence is in force is used—
(i) within the territorial waters of the United Kingdom adjacent to Scotland; and
(ii) within any inland waters or waters specified in the licence under subsection (7)(b) above; but
(iii) outwith the area of the licensing authority which granted or last renewed the licence; and
(b) all persons carried in the vessel embark initially from places within the area of the authority,
it shall not be necessary to have in force in respect of that use of the vessel a boat hire licence granted by any other licensing authority and the conditions subject to which the licence is held shall continue to apply to such use.
(1) Subject to subsection (3) below, a licence, to be known as a “street trader’s licence”, shall be required for street trading by a person, whether on his own account or as an employee.
(2) In this section “street trading” means doing any of the following things in a public place—
(a) hawking, selling or offering or exposing for sale any article;
(b) offering to carry out or carrying out for money or money’s worth any service,
to any person in the public place and includes doing any of these things there in or from a vehicle or in or from a kiosk or moveable stall not entered in the valuation roll except where it is done in conjunction with or as part of a retail business being carried on in premises abutting the public place.
(3) A street trader’s licence shall not be required for—
(a) the sale of newspapers only;
(b) the sale of milk by or on behalf of a person registered under regulations made under section 19 of the Food Safety Act 1990;
(c) the sale of coal, coke or any solid fuel derived from coal or of which coal or coke is a constituent;
(d) any activity in respect of which a certificate under the Pedlars Act 1871 has been granted;
(e) any activity in respect of which a licence is required under this Act apart from this section; or
(f) organising or participating in a public charitable collection within the meaning of subsection (16) of section 119 of this Act in accordance with permission granted under that section.
(4) Where an application for a street trader’s licence is made in respect of an activity which—
(a) consists of or includes food business within the meaning of sections 1(3) of the Food Safety Act 1990; and
(b) involves the use of a vehicle, kiosk or moveable stall,
the licensing authority shall, without prejudice to paragraph 5(3) of Schedule 1 to this Act, refuse the application unless there is produced to them a certificate by a food authority (for the purposes of section 5 of the Food Safety Act 1990) mentioned in subsection (4A) stating that the vehicle, kiosk or moveable stall complies with such requirements as the Scottish Ministers may by order made by statutory instrument specify.
(4A) A food authority referred to in subsection (4) is a food authority in Scotland which, in respect of the activity mentioned in that subsection—
(a) has registered the establishment that carries out or intends to carry out the activity for the purposes of Article 6.2 of Regulation ECNo. 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs, or
(b) where no such food authority has registered the establishment for those purposes, a food authority which is—
(i) the licensing authority to which the application mentioned in subsection (4) in respect of the activity is made, or
(ii) another licensing authority to which an application for a street trader's licence in respect of the activity is or has been made.
(5) An order under subsection (4) may specify requirements by reference to provision contained in another enactment.
(6) A statutory instrument containing an order made under subsection (4) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(1) Subject to subsection (2) below, a licence, to be known as a “market operator’s licence”, shall be required for carrying on a private market.
(2) A market operator’s licence shall not be required for carrying ; on either of the following—
(a) functions held by charitable, religious, youth, recreational, community, political or similar organisations;
(b) markets held only for the sale of livestock, fodder or grain.
(3) In addition to any other condition which may be included, a licence in respect of a private market shall include conditions as to—
(a) the regulation of days and hours of opening;
(b) the provision of adequate toilet facilities;
(c) the layout of the site or premises on which the market is to be held;
(d) the maintenance of order and public safety.
(4) In this section, “private market” means a market, whether covered or not, carried on by any person other than a local or public authority at which goods are offered by more than one seller for sale by retail to the public.
(1) A licence, to be known as a “public entertainment licence”, shall be required for the use of premises as a place of public entertainment.
(2) In this section, “place of public entertainment” means any place where ... members of the public are admitted or may use any facilities for the purposes of entertainment or recreation but does not include—
(a) an athletic or sports ground while being used as such;
(aa) premises in respect of which a licence is required under section 41A of this Act while such premises are being used for the purposes mentioned in that section;
(ab) a sexual entertainment venue (as defined in section 45A) in relation to which Schedule 2 (as modified for the purposes of section 45B) has effect, while being used as such;
(b) an educational establishment while being used as such;
(c) premises belonging to or occupied by any religious body while being used wholly or mainly for purposes connected with that body;
(d) premises licensed under ... section 1 of the Cinemas Act 1985;
(e) premises in respect of which there is a club gaming permit (within the meaning of section 271 of the Gambling Act 2005 (c.19)) or a prize gaming permit (within the meaning of section 289 of that Act of 2005);
(f) premises in respect of which a premises licence within the meaning of section 17 of the Licensing (Scotland) Act 2005 has effect in which public entertainment is being provided during licensed hours within the meaning of that Act; ...
(g) premises in which machines for entertainment or amusement are being provided incidentally to the main purpose or use of the premises where that main purpose or use is not as a place of public entertainment , or
(h) such other premises as the Scottish Ministers may by order made by statutory instrument specify.
(2A) A statutory instrument containing an order made under subsection (2)(h) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(3) Without prejudice to section 3B of and paragraph 5 of Schedule 1 to this Act, a licensing authority may attach conditions to a public entertainment licence—
(a) restricting the use of the premises to a specified kind or specified kinds of entertainment or recreation;
(b) limiting the number of persons to be admitted to the premises;
(c) fixing the days and times when the premises may be open for the purposes of the entertainment or recreation.
(3A) In relation to a public entertainment licence which authorises the use of premises for the performance of plays, no condition may be attached to the licence as to the nature of the plays which may be performed, or the manner of performing plays, under the licence.
(3B) Subsection (3A) does not prevent a licensing authority from attaching, by virtue of section 3B or in accordance with subsection (3) or paragraph 5 of Schedule 1, any condition which they consider appropriate on the grounds of public safety.
(4) In this section, “educational establishment” has the meaning given by paragraphs (i) and (ii) of the definition of that expression in section 135(1) of the Education (Scotland) Act 1980 but includes a university and a theological college.
(1) Subject to subsection (2) below, a licence to be known as an “indoor sports entertainment licence” shall be required for the use of premises as a place of public sports entertainment.
(2) Subsection (1) above shall not apply to any occasion on which the entertainment of the public by the sport is not the principal purpose for which the premises are used but this provision does not apply in relation to a sports complex.
(3) Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority may attach conditions to an indoor sports entertainment licence—
(a) restricting the use of the premises to a specified kind or specified kinds of public sports entertainment;
(b) limiting the number of persons to be admitted to the premises;
(c) fixing the days and times when the premises may be open for the purposes of public sports entertainment.
(4) In this section—
“premises” means any permanent or temporary building and any tent or inflatable structure and includes a part of a building where the building is a sports complex but does not include a part of any other building;
“public sports entertainment” means any sporting event to which the public are invited as spectators;
“sporting event” means any contest, exhibition or display of any sport;
“sports complex” means a building—
(a) which provides accommodation and facilities for both those engaging in sport and spectators; and
(b) the parts of which are so arranged that one or more sports can be engaged in simultaneously in different parts of the building; and
“sport” includes any game in which physical skill is the predominant factor and any form of physical recreation which is also engaged in for purposes of competition or display, except dancing (in any form).
(1) A licence, to be known as a “late hours catering licence”, shall be required for the use of premises between the hours of eleven o’clock in the evening and five o’clock the following morning for the sale to or consumption by the public of food .
(2) The reference in subsection (1) above to the sale of food is a reference to the sale of food for consumption on as well as off the premises in which it is sold.
(3) Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority may attach conditions to a late hours catering licence fixing the days and hours during which the premises may be open for business, and different days and hours may be fixed for the sale of food for consumption on the premises from those fixed for the sale of food for consumption off the premises.
(4) A late hours catering licence shall not be required in respect of—
(a) the use as such of licensed premises within the meaning of the Licensing (Scotland) Act 2005 (asp 16) ; or
(b) premises being used in accordance with a public entertainment licence.
(5) A licensing authority may, on application made to them, exempt the use of premises requiring a late hours catering licence from the requirement to have such a licence—
(a) in respect of any particular occasion; or
(b) during a specified period not exceeding 2 months in any period of 12 months.
(6) The licensing authority may attach conditions to an exemption granted under subsection (5) above, and the provisions of Part I of this Act relating to the attaching of conditions to licences and subsection (3) above shall apply to the attaching of conditions to exemptions under this subsection.
(7) In this section “food” has the meaning given in section 1 of the Food Safety Act 1990 (c.16).
(1) The Secretary of State may, by order made by statutory instrument, designate any activity other than one of those specified in this Part of this Act—
(a) as an activity for which, subject to a resolution of the licensing authority in relation to it under section 9 of this Act, a licence shall be required and which, subject to such a resolution, shall be regulated in accordance with the provisions specified in the order; or
(b) as an activity for which a licence shall be required and which shall be regulated in accordance with the provisions specified in the order.
(2) An order made under this section may provide—
(a) that Part I of this Act, with such modifications if any as may be specified in the order, shall have effect for the purposes of the licensing of the activity designated by the order;
(b) for the regulation of the activity designated by the order;
(c) for the repeal or modification of any enactment which provides (whether consistently or not) for the same matter as the order;
(d) without prejudice to any provision of Part I of this Act which has effect, with or without modification, by virtue of paragraph (a) above, for the creation of offences and for making offenders liable, on summary conviction, to imprisonment for a period not exceeding 60 days or such lesser maximum period as may be specified in the order or to a fine not exceeding level 3 on the standard scale or such lesser maximum fine as may be so specified or to both such fine and such imprisonment.
(3) No order shall be made under this section unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(1) A local authority may resolve that Schedule 2 to this Act shall have effect in their area; and if they do so resolve that Schedule shall have such effect as from the day specified in that behalf in the resolution (which must not be before the expiration of the period of one month beginning with the day on which the resolution is passed).
(2) A local authority shall, not later than 28 days before the day specified in the resolution for the coming into effect of Schedule 2 to this Act in the authority’sarea, publish notice that they have passed a resolution under this section in a newspaper circulating in their area.
(3) The notice shall state the general effect of that Schedule.
45A Licensing of sexual entertainment venues: interpretation
(1) This section applies for the purposes of the interpretation of section 45B and Schedule 2 (as modified for the purposes of section 45B).
(2) “Sexual entertainment venue” means any premises at which sexual entertainment is provided before a live audience for (or with a view to) the financial gain of the organiser.
(3) For the purposes of that definition—
“audience” includes an audience of one,
“financial gain” includes financial gain arising directly or indirectly from the provision of the sexual entertainment,
“organiser”, in relation to the provision of sexual entertainment in premises, means—
the person (“A”) who is responsible for—
the management of the premises, or
the organisation or management of the sexual entertainment, or
where A exercises that responsibility on behalf of another person (whether by virtue of a contract of employment or otherwise), that other person,
“premises” includes any vehicle, vessel or stall but does not include any private dwelling to which the public is not admitted,
“sexual entertainment” means—
any live performance, or
any live display of nudity,
which is of such a nature that, ignoring financial gain, it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (whether by verbal or other means).
(4) For the purposes of the definition of “sexual entertainment”, “display of nudity” means—
(a) in the case of a woman, the showing of (to any extent and by any means) her nipples, pubic area, genitals or anus,
(b) in the case of a man, the showing of (to any extent and by any means) his pubic area, genitals or anus.
(5) Sexual entertainment is provided if (and only if) it is provided (or allowed to be provided) by or on behalf of the organiser.
(6) References in Schedule 2 (as modified for the purposes of section 45B) to the use of any premises by a person as a sexual entertainment venue are to be read as references to their use by the organiser.
(7) The following are not sexual entertainment venues—
(a) a sex shop (within the meaning of paragraph 2(1) of Schedule 2),
(b) such other premises as the Scottish Ministers may by order specify.
(8) An order under subsection (7)(b) may make different provision for different purposes.
(9) Premises at which sexual entertainment is provided as mentioned in subsection (2) on a particular occasion (“the current occasion”) are not to be treated as a sexual entertainment venue if sexual entertainment has not been provided on more than 3 previous occasions which fall wholly or partly within the period of 12 months ending with the start of the current occasion.
(10) For the purposes of subsection (9)—
(a) each continuous period during which sexual entertainment is provided on the premises is to be treated as a separate occasion, and
(b) where the period during which sexual entertainment is provided on the premises exceeds 24 hours, each period of 24 hours (and any part of a period of 24 hours) is to be treated as a separate occasion.
(11) The Scottish Ministers may by order provide for—
(a) descriptions of performances, or
(b) descriptions of displays of nudity,
which are not to be treated as sexual entertainment for the purposes of this section.
(12) An order under subsection (7)(b) or (11) is subject to the negative procedure.
(1) A local authority may resolve that Schedule 2 (as modified for the purposes of this section) is to have effect in their area in relation to sexual entertainment venues.
(2) If a local authority passes a resolution under subsection (1), Schedule 2 (as so modified) has effect in their area from the day specified in the resolution.
(3) The day mentioned in subsection (2) must not be before the expiry of the period of one year beginning with the day on which the resolution is passed.
(4) A local authority must, not later than 28 days before the day mentioned in subsection (2), publish notice that they have passed a resolution under this section.
(5) The notice must—
(a) state the general effect of Schedule 2 (as modified for the purposes of this section), and
(b) be published electronically or in a newspaper circulating in the local authority's area.
(6) For the purposes of this section, paragraphs 1 and 3 to 25 of Schedule 2 apply with the following modifications—
(a) references to a sex shop are to be read as references to a sexual entertainment venue,
(b) references to the use by a person of premises, vehicles, vessels or stalls as a sexual entertainment venue are to be read as references to their use by the organiser,
(c) in paragraph 1—
(i) in sub-paragraph (b)—
(A) the word “or” immediately following paragraph (i) is omitted,
(B) paragraph (ii) is omitted, and
(ii) sub-paragraph (c) is omitted,
(d) in paragraph 7—
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) after sub-paragraph (3) insert—
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3C) The applicant must also, not later than 7 days after the date of the application—
(a) send a copy of the application to each person or body listed in the local authority's determination under sub-paragraph (3D), and
(b) submit to the local authority a certificate stating that the applicant has complied with this sub-paragraph.
(3D) For the purposes of sub-paragraph (3C), a local authority must—
(a) from time to time determine the persons or bodies who must receive a copy of the application, and
(b) publicise the determination in such manner as they consider appropriate.
,
(e) in paragraph 9—
(i) in sub-paragraph (5)(c)—
(A) after the word “in” insert “ the local authority's area or ”,
(B) after the word “for” insert “ their area or ”,
(ii) after sub-paragraph (5) insert—
(5A) For the purposes of sub-paragraph (5)(c), a local authority must—
(a) from time to time determine the appropriate number of sexual entertainment venues for their area and for each relevant locality, and
(b) publicise the determination in such manner as they consider appropriate.
,
(iii) after sub-paragraph (6) insert—
(6A) A local authority may refuse an application for the grant or renewal of a licence despite the fact that a premises licence under Part 3 of the Licensing (Scotland) Act 2005 is in effect in relation to the premises, vehicle, vessel or stall to which the application relates.
,
(f) in paragraph 12(2)(b), for “shorter” substitute “ other ”,
(g) in paragraph 19(1)(e), for the words from “without” to the end of paragraph (e) substitute “knowingly permits any person under the age of 18 to enter the sexual entertainment venue—
(i) at a time when sexual entertainment is being provided, or
(ii) without reasonable excuse, at any other time,”, and
(h) in paragraph 25, in each of sub-paragraphs (1)(a) and (2), for “45” substitute “ 45B ”.
(7) In carrying out functions conferred by virtue of this section, a local authority must have regard to any guidance issued by the Scottish Ministers.
45C Statements of policy in relation to sexual entertainment venues
(1) This section applies where a local authority passes a resolution under section 45B(1).
(2) The local authority must prepare a statement of their policy with respect to the exercise of their functions in relation to the licensing of sexual entertainment venues (a “SEV policy statement”).
(3) In preparing a SEV policy statement, a local authority must—
(a) consider the impact of the licensing of sexual entertainment venues in their area, having regard, in particular, to how it will affect the objectives of—
(i) preventing public nuisance, crime and disorder,
(ii) securing public safety,
(iii) protecting children and young people from harm,
(iv) reducing violence against women, and
(b) consult such persons or bodies as they consider appropriate.
(4) The local authority must publish the SEV policy statement at the same time and in the same manner as they publish the notice of the resolution under section 45B(4).
(5) The local authority must—
(a) from time to time review the SEV policy statement and make such revisions as they consider appropriate (if any), and
(b) publish the revised statement in such manner as they consider appropriate.
(6) Subsection (3) applies to a review of a SEV policy statement as it applies to preparing such a statement.
(7) In exercising their functions in relation to the licensing of sexual entertainment venues, a local authority must have regard to their SEV policy statement or revised statement.
(8) In this section—
“children” means persons under the age of 16,
“young people” means persons aged 16 or 17.
(1) For the purpose of the discharge of their functions under this Part, every local authority must—
(a) consider each relevant application made to them within the period of 3 months beginning with the date on which the application was made, and
(b) subject to the following provisions of this section, reach a final decision on the application within the period of 6 months beginning with the end of the 3 month period referred to in paragraph (a).
(2) On an application by the local authority within the 6 month period referred to in subsection (1)(b), the sheriff may, if it appears that there is a good reason to do so, extend that period as the sheriff thinks fit.
(3) The applicant is entitled to be a party to proceedings on an application under subsection (2).
(4) Where the local authority have failed to reach a final decision on the application before the expiry of—
(a) the 6 month period referred to in subsection (1)(b), or
(b) such further period as the sheriff may have specified on application under subsection (2),
the licence is deemed to have been granted, renewed or, as the case may be, varied on the date of such expiry.
(5) A licence deemed to have been granted or renewed under subsection (4) is to remain in force for the period of one year.
(6) A deemed variation of the terms of a licence deemed under subsection (4) is to have effect for the remaining period of the licence.
(7) Subsections (4) and (6) do not affect—
(a) the powers of revocation under paragraph 13 of Schedule 2, and
(b) the powers of variation under paragraph 15 of that Schedule.
(8) The deemed grant, renewal or variation of the terms of a licence under subsection (4) has the same effect, for the purposes of Schedule 2, as a decision of the licensing authority to grant, renew or vary the terms of a licence.
(9) For the purposes of this section, a “relevant application” is an application under paragraph 6 or 15 of Schedule 2.
(1) The Scottish Ministers may by order prescribe conditions to which licences granted by local authorities under this Part are to be subject.
(2) Different conditions may be prescribed under subsection (1)—
(a) in respect of different licences or different types of licence,
(b) otherwise for different purposes, circumstances or cases.
(3) An order under subsection (1) is subject to the affirmative procedure.
(4) Subsection (1) does not affect any other power of the Scottish Ministers under this Act or any other enactment to prescribe conditions—
(a) to which licences granted by local authorities under this Part are to be subject, or
(b) to be imposed by local authorities in granting or renewing licences under this Part.
(5) The following conditions are referred to in this Part as “mandatory conditions”—
(a) conditions prescribed under subsection (1),
(b) conditions prescribed under any power referred to in subsection (4), and
(c) conditions imposed, or required to be imposed, by any provision of this Part.
(6) In this section and section 45F, references to licences granted by local authorities include references to—
(a) licences renewed by local authorities, and
(b) licences deemed by virtue of section 45D to have been granted or renewed by local authorities.