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Civic Government (Scotland) Act 1982

1982 CHAPTER 45

An Act to make provision as regards Scotland for the licensing and regulation of certain activities; for the preservation of public order and safety and the prevention crime; for prohibiting the taking of and dealing with indecent photographs of children; as to certain powers of constables and others; as to lost and abandoned property and property in the possession of persons taken into police custody; as to the rights and duties of the owners and users of certain land, buildings and other structures; as to the making by local authorities of byelaws; and to enable them to make management rules applying to land or premises under their control; as to certain other functions of local authorities and their officers; as to the time when the Burgh Police (Scotland) Acts 1892 to 1911 and certain local statutory provisions cease to have effect; and for connected purposes.]

[28th October 1982]

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Modifications etc. (not altering text)

C1Act: power to modify conferred (1.10.2011) by Alcohol etc. (Scotland) Act 2010 (asp 18), ss. 15(1)(c)(ii), 18(1) (with s. 16); S.S.I. 2011/149, art. 2, sch.

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Extent Information

E1Act (except s. 16 which applies to England and Wales) applies to Scotland only see s. 137(9).

Modifications etc. (not altering text)

C2Act excluded (19. 12. 1991) by City of Edinburgh District Council Order Confirmation Act (c. xix), ss. 1, 12(2), Sch. Pt. V

Commencement Information

I1Act partly in force at Royal Assent see s. 137(2); Act wholly in force at 1. 1. 1985 see S.I. 1983/201 as amended by S.I. 1984/573 and 744.

Part IS Licensing—General Provisions

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Modifications etc. (not altering text)

C3Pt. I modified (3.6.1991) by S.I. 1991/1253, art. 3(2), Sch. (which S.I. was revoked (7.6.2000) by S.S.I. 2000/177, art. 9)

C4Pt. I applied (with modifications) (7.6.2000) by S.S.I. 2000/177, art. 4, Sch. (as amended (1.10.2003) by S.S.I. 2003/463, art. 6)

1 Application of Parts I and II of this Act.S

This Part of this Act shall have effect with respect to the licensing of the activities for which licences are required under Part II of this Act.

2 Licensing authorities.S

(1)For the administration of licensing in relation to the activities in connection with which licences are required under Part II of this Act there shall be a licensing authority for [F1the area of each local authority].

(2)The licensing authority shall be the [F2local authority]within whose area the activity is, or is to be, carried on.

(3)Notwithstanding subsection (2) above, a [F2local authority]shall not be exempt from any requirement to have a licence or any other obligation under this Part or Part II of this Act and a licensing authority shall have power to entertain and dispose of an application by a [local authority] for a licence or in respect of a licence held by them.

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Amendments (Textual)

F1Words in s. 2(1) substituted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 129(2)(a); S.I. 1996/323, art. 4(1)(c)

F2Words in s. 2(2)(3) substituted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 129(2)(b); S.I. 1996/323, art. 4(1)(c)

3 Discharge of functions of licensing authorities.S

(1)For the purpose of the discharge of their functions under this Part of this Act, every licensing authority [F3must—

(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 summary application by the licensing authority within the 6 month period referred to in subsection (1) above, the sheriff may, if it appears to him that there is good reason to do so, extend that period as he thinks fit.

(3)The applicant shall be entitled to be a party to a summary application under subsection (2) above.

(4)Where the licensing 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) above, or

(b)such further period as the sheriff may have specified on application under subsection (2) above,

the licence F4... shall be deemed to have been granted [F5, renewed or, as the case may be, varied] F6... on the date of such expiry F7....

[F8(4A)A licence deemed to have been granted or renewed under subsection (4) is—

(a)in the case of a temporary licence, to remain in force for the duration of the period sought in the application (up to a maximum period of 6 weeks), or

(b)in any other case, to remain in force for the period of one year.

(4B)A variation of the terms of a licence deemed to have been granted under subsection (4) is to have effect for the remaining period of the licence.

(4C)Subsections (4) and (4B) do not affect—

(a)the powers of revocation under section 7(6)(a),

(b)paragraph 8(5) of Schedule 1 (which relates to renewals of existing licences),

(c)the powers of variation under paragraph 10 of that Schedule, or

(d)the powers of suspension and revocation under paragraphs 11 and 12 of that Schedule.]

[F9(5A)The deemed grant, renewal or variation of the terms of a licence under subsection (4) is, for the purposes of Schedule 1, to be treated as a decision of the licensing authority to grant, renew or vary the terms of a licence.

(5B)For the purposes of this section, a “relevant application” is an application under paragraph 1, 7 or 10 of Schedule 1.]

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Amendments (Textual)

[F103AMandatory licence conditionsS

(1)The Scottish Ministers may by order made by statutory instrument prescribe conditions to which licences granted by licensing authorities under this Act 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)No order may be made under subsection (1) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.

(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 licensing authorities under this Act are to be subject, or

(b)to be imposed by licensing authorities in granting or renewing licences under this Act.

(5)The following conditions are referred to in this Part and Part 2 of this Act 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 or Part 2 of this Act.

(6)In this section and section 3B, references to licences granted by licensing authorities include references to—

(a)licences renewed by licensing authorities, and

(b)licences deemed by virtue of section 3(4) to be granted or renewed by licensing authorities.

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Amendments (Textual)

3BStandard licence conditionsS

(1)A licensing authority may determine conditions to which licences granted by them under this Act are to be subject.

(2)Conditions determined under subsection (1) are referred to in this Part and Part 2 as “standard conditions”.

(3)Different conditions may be determined under subsection (1)—

(a)in respect of different licences, or different types of licence,

(b)otherwise for different purposes, circumstances or cases.

(4)A licensing authority must publish, in such manner as they think appropriate, any standard conditions determined by them.

(5)Standard conditions have no effect—

(a)unless they are published, and

(b)so far as they are inconsistent with any mandatory conditions.

(6)Subsection (1) is subject to paragraph 5(1A)(a) of Schedule 1 to this Act.]

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Amendments (Textual)

4 Further provisions as to licensing.S

Schedule 1 to this Act (which contains further provisions as to licensing and regulation in relation to the activities in connection with which licences are required under Part II of this Act) shall have effect.

5 Rights of entry and inspection.S

(1)Without prejudice to any other provision of this Act, an authorised officer of the licensing authority [F11, an authorised civilian employee ] F12... or a constable may, for the purposes specified in subsection (2) below, at any reasonable time—

(a)enter and inspect any premises, vehicle or vessel used or to be used for an activity in relation to which a licence is in force or has been applied for under this Act;

(b)require production of and inspect any equipment, plant, apparatus or stock-in-trade which is or is to be kept or used in connection with any such activity;

(c)require production of and inspect any records or other documents required by or under this Part or Part II of this Act to be kept by the holder of the licence and take copies of or extracts from any such record or document.

(2)The purposes referred to in subsection (1) above are—

(a)where a licence is in force—

(i)seeing whether the terms of the licence are being complied with and, if they are not, obtaining information in respect of such non-compliance;

(ii)obtaining information relevant to the question whether the terms of the licence should be varied under paragraph 10 of Schedule 1 to this Act or whether the licence should be renewed or, under paragraph 11 or 12 of that Schedule, suspended [F13or revoked] ; or

(b)where the grant of a licence has been applied for, obtaining information relevant to the question whether the application should be granted.

(3)Any person who—

(a)being a person for the time being in charge of any premises, vehicle or vessel, fails without reasonable excuse to permit a constable [F14, an authorised civilian employee ] or an authorised officer of a licensing authority F15... who, in pursuance of subsection (1) above, demands to do so to enter or inspect the premises, vehicle or vessel or obstructs the entry thereto of a constable or such an [F16 employee or ] officer, in pursuance of that subsection;

(b)being a person in respect of whom powers are exercised under subsection (1) above, on being required under that subsection to do so by a constable [F14, an authorised civilian employee ] or an authorised officer of the licensing authority F17... , fails without reasonable excuse to produce any equipment, plant, apparatus or stock-in-trade or to permit a constable or such an [F16 employee or ] officer, in pursuance of that subsection, to inspect any equipment, plant, apparatus or stock-in-trade;

(c)being a holder of a licence, on being required by a constable [F18, an authorised civilian employee ] or an authorised officer of the licensing authority F19... , in pursuance of subsection (1) above, to produce any records or other document required by or under this Part or Part II of this Act to be kept by the holder of a licence, fails without reasonable excuse to produce them;

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F20level 3 on the standard scale].

(4)An authorised officer of a licensing authority [F21, an authorised civilian employee ] or a constable may require any person who the officer [F22, employee ] or constable has reasonable ground to believe is carrying on an activity which requires to be licensed to produce his licence within 5 days of being required to do so.

(5)Any person who, having been required under subsection (4) above to produce a licence, fails without reasonable excuse to do so within the period of 5 days specified in that subsection shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F20level 1 on the standard scale].

(6)An authorised officer of a licensing authority [F23 or authorised civilian employee ] F24... shall not be entitled to exercise the powers which he may exercise under subsection (1) or (4) above until he has produced his authorisation—

(a)in relation to the exercise of powers under subsection (1)(a) above, to the person for the time being in charge of the premises, vehicle or vessel; and

(b)in any other case, to the person in respect of whom the powers are to be exercised.

(7)A constable who is not in uniform shall not be entitled to exercise the powers which he may exercise under subsection (1) or (4) above until he has produced his identification—

(a)in relation to the exercise of powers under subsection (1)(a) above, to the person for the time being in charge of the premises, vehicle or vessel; and

(b)in any other case, to the person in respect of whom the powers are to be exercised.

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Amendments (Textual)

6 Powers of entry to and search of unlicensed premises.S

(1)If a justice of the peace or sheriff is satisfied by evidence on oath that there is reasonable ground for suspecting that—

(a)an activity in respect to which a licence under this Act [F25(other than a knife dealer's licence) ] is required is being carried on in any premises, vehicle, or vessel; and

(b)no such licence is in force,

he may grant a warrant authorising any constable to enter and search the premises, vehicle or vessel specified in the warrant.

(2)A constable may use reasonable force in executing a warrant granted under subsection (1) above.

(3)A constable who is not in uniform shall produce his identification if required to do so by any person in or upon any premises, vehicle or vessel which the constable is about to enter, is entering or has entered under the powers conferred under subsection (1) above, and if he has been so required to produce his identification, he shall not be entitled to enter or search the premises, vehicle or vessel or, as the case may be, remain there or continue to search the premises, vehicle or vessel until he has produced it.

(4)Any person who fails without reasonable excuse to permit a constable in pursuance of a warrant granted under this section to enter and search any premises, vehicle or vessel or who obstructs the entry thereto or search thereof by a constable shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F26level 3 on the standard scale].

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Amendments (Textual)

7 Offences, etc.S

[F27(A1)Any person who without reasonable excuse does anything for which a licence is required under section 27A without having such a licence is guilty of an offence and liable—

(a)on summary conviction to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine or both.]

(1)Any person who without reasonable excuse does anything for which a licence is required under [F28 any provision of ] Part II of this Act [F29 other than section 27A ] without having such a licence shall be guilty of an offence and liable, on summary conviction

[F30(a)in a case where the licence so required is [F31a metal dealer's licence, an itinerant metal dealer's licence or] a public entertainment licence, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding six months or to both; and

(b)in any other case,], to a fine not exceeding [F32level 4 on the standard scale].

(2)If a condition attached to a licence is not complied with, the holder of the licence shall, subject to subsection (3) below, be guilty of an offence and liable, on summary conviction

[F33(a)in a case where the licence is a public entertainment licence and the condition is attached under section 41(3)(b) of this Act, to such fine or imprisonment as is mentioned in subsection (1)(a) above (or to both); F34...

[F35(aa)in a case where the licence is a knife dealer's licence, to a fine not exceeding level 5 on the standard scale; F36...]

[F37(ab)in a case where the licence is a metal dealer's licence or an itinerant metal dealer's licence, to such fine or imprisonment as is mentioned in subsection (1)(a) (or to both), and]

(b)in any other case,], to a fine not exceeding [F32level 3 on the standard scale].

(3)It shall be a defence for a person charged with an offence under subsection (2) above to prove that he used all due diligence to prevent the commission of the offence.

(4)Any person who, in making an application under this Part of this Act to the licensing authority, makes any statement which he knows to be false or recklessly makes any statement which is false in a material particular shall be guilty of an offence and liable, on summary conviction,

[F38(a)in a case where the application is for a knife dealer's licence, to a fine not exceeding level 5 on the standard scale; and

(b)in any other case,]to a fine not exceeding [F32level 4 on the standard scale].

(5)Any person who, being the holder of a licence—

(a)fails without reasonable excuse to notify the licensing authority of a material change of circumstances in accordance with paragraph 9(1) of Schedule 1 to this Act;

(b)without reasonable excuse makes or causes or permits to be made any material change in any premises, vehicle or vessel in contravention of paragraph 9(2) of Schedule 1 to this Act;

(c)fails without reasonable excuse to deliver his licence to the licensing authority in accordance with paragraph 13(2) of Schedule 1 to this Act,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding, in the case of an offence under paragraph (a) or (b) above, [F32level 3 on the standard scale], and in the case of an offence under paragraph (c) above, [F32level 1 on the standard scale].

(6)Where a holder of a licence is convicted of an offence under section 5 (other than subsection (5) thereof), 6 or this section, the court by which he is convicted may, in addition to any other penalty which the court may impose, make an order in accordance with one or both of the following paragraphs—

(a)that the licence shall be revoked;

(b)that the holder of the licence shall be disqualified from holding a licence for a period not exceeding 5 years.

(7)Where the holder of a licence is convicted of an offence under this section, 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.

(8)A person may appeal against an order under subsection (6) above in the same manner as against sentence and the court which made the order may, pending the appeal, suspend the effect of the order.

(9)A person may, at any time after the expiry of the first year of his disqualification under subsection (6) above, apply to the court which ordered the disqualification to remove it, and, on such application, the court may by order remove the disqualification as from such date as may be specified in the order or refuse the application, and, in either case, may order the applicant to pay the whole or any part of the expenses of such application.

(10)Where an offence is alleged to have been committed under subsection (2) above by an employee or agent named in a licence, proceedings in respect of that offence may be instituted against the joint licence holder who is the employer of the employee or principal of the agent, whether or not proceedings have been instituted against the employee or agent.

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Amendments (Textual)

8 Interpretation of Parts I and II.S

In this Part and in Part II of this Act except where the context otherwise requires—

  • F39...

  • [F40authorised civilian employee” means a person—

    (a)

    [F41appointed by the Scottish Police Authority under section 26(1) of the Police and Fire Reform (Scotland) Act 2012 (asp 8); and]

    (b)

    authorised by the chief constable for the purposes of sections 5 and 11 of this Act;]

  • [F42chief constable” means the chief constable of the Police Service of Scotland;]

  • F43...

  • licence” means a licence granted under this Part and Part II of this Act, and cognate expressions shall be construed accordingly;

  • premises” includes land.

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Amendments (Textual)

F39Words in s. 8 repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 8 Pt. 2; S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F41Words in s. 8 substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 6(2)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F42Words in s. 8 substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 6(2)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Part IIE+W+S Licensing and Regulation—Particular Activities

9 Application of sections 10 to 27 and 38 to 44.S

(1)Sections 10 to 27 (except section 20), any regulations made under the said section 20, and sections 38 to 43 [F44(except section 41A)] of this Act and any order made under section 44(1)(a) of this Act (which sections regulations and order are in this section called the “optional provisions”) shall have effect in the area of a licensing authority only if and insofar as the authority have so resolved in accordance with subsections (2) to (8) below.

(2)A licensing authority may, in accordance with this section, resolve that, as from a day specified in the resolution (which must not be before the expiration of the period of nine months beginning with the day on which the resolution was made) any activity provision for the licensing and regulation of which is made by the optional provisions shall require to be licensed in accordance with the provisions of this Act relating to that activity and shall be regulated by those provisions.

(3)Subject to subsections (4) and (5) below, a resolution under this section may be made—

(a)in relation to all or any of the activities referred to in subsection (2) above;

(b)in relation to the whole or any part of the area of the licensing authority;

(c)in relation to—

(i)all classes of an activity referred to in any of the optional provisions; or

(ii)all such classes subject to exceptions; or

(iii)any particular such class or classes.

(4)A licensing authority may not make a resolution under this section relating to any of the activities provision for the licensing and regulation of which is made in sections 10 to 23 of this Act (that is to say the operation of a vehicle as a taxi, the operation of a vehicle as a hire car, the driving of a taxi and the driving of a hire car) unless it relates to all these activities.

(5)A resolution made under this section by the licensing authority relating to—

(a)the activity provision for the licensing and regulation of which is made in sections 24 to 27 of this Act (that is to say the carrying on of business as a second-hand dealer) shall specify the particular class or classes of that activity which shall thereby fall to be licensed and regulated;

(b)the activity provision for the licensing of which is made in section 41 of this Act (that is to say the use of premises as a place of public entertainment) shall specify the place or places, or class or classes thereof, which shall thereby fall to be licensed.

(6)A licensing authority shall not make a resolution under this section unless they have—

(a)published in a newspaper or newspapers circulating in their area the terms of the proposed resolution together with a notice stating—

(i)that they intend to make the resolution; and

(ii)that representations about the resolution may be made in writing to the authority within 28 days of the first publication of the notice; and

(b)considered any representations so made.

(7)A licensing authority, before proceeding to make a resolution under this section, may make such modifications to the proposed resolution as they think fit in the light of representations made to them about it provided such modifications do not extend its scope.

(8)The licensing authority shall, as soon as they have made a resolution under subsection (2) above, publish in a newspaper or newspapers circulating in their area—

(a)the terms of the resolution so made; together with

(b)a notice stating—

(i)that with effect from the date specified as that on which the resolution comes into effect it will be an offence under section 7(1) of this Act to do without a licence whatever the resolution specifies as being an activity requiring to be licensed; and

(ii)that applications for licences in respect of the activity will be considered by the authority after the expiry of one month after the date of the making of the resolution.

(9)A resolution under this section may be varied or rescinded by a subsequent resolution made in like manner except that, in relation to the time when it takes effect, a resolution under this subsection—

(a)varying a resolution under this section so as to reduce its scope; or

(b)rescinding a resolution under this section

shall take effect on such date as may be specified in it being any date subsequent to the making of the resolution.

(10)Anything which must or may be done under or by virtue of Part I or this Part of this Act may, at any time after the making by the licensing authority of the resolution, be done so far as may be necessary or expedient for the purpose of giving full effect to the resolution at or after the time it takes effect but no application for a licence in respect of an activity requiring to be licensed in consequence of the resolution shall be considered by the authority until the expiry of one month after the making of the resolution.

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Amendments (Textual)

Modifications etc. (not altering text)

C8S. 9 applied (until 1.4.1996) by S.I. 1995/1878, art. 3

C9S. 9(9) modified (until 1.4.1996) by S.I. 1995/1878, art. 3

Licensing and regulation of taxis and private hire carsE+W+S

10 Taxi and private hire car licences.S

(1)A licence, to be known as a “taxi licence” or, as the case may be, a “private hire car licence”, shall be required for the operation of a vehicle as—

(a)a taxi; or

(b)a private hire car.

(2)A licensing authority shall not grant or renew a taxi licence or private hire car licence unless they are satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi or private hire car, as the case may be, and is safe for that use, and that there is in force in relation to the vehicle such a policy of insurance or such security as complies with Part VI of the M1Road Traffic Act 1972.

[F45(3)Without prejudice to paragraph 5 of Schedule 1 to this Act, the grant of a taxi licence may be refused by a licensing authority for the purpose of limiting the number of taxis in respect of which licences are granted by them if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet.]

[F46(3A)Without prejudice to paragraph 5 of Schedule 1, the grant of a private hire car licence may be refused by a licensing authority if, but only if, they are satisfied that there is (or, as a result of granting the licence, would be) overprovision of private hire car services in the locality (or localities) in their area in which the private hire car is to operate.

(3B)It is for the licensing authority to determine the localities within their area for the purposes of subsection (3A) and in doing so the authority may determine that the whole of their area is a locality.

(3C)In satisfying themselves as to whether there is or would be overprovision for the purposes of subsection (3A) in any locality, the licensing authority must have regard to—

(a)the number of private hire cars operating in the locality, and

(b)the demand for private hire car services in the locality.]

(4)A vehicle shall, for the purposes of subsection (2) above, be treated by a licensing authority [F47

(a)]as being suitable in type, size and design if it complies with regulations in that regard made by the Secretary of State under section 20(2) of this Act in respect of their area[F48; and

(b)as not being so suitable if it does not so comply.]

(5)A taxi licence or private hire car licence shall extend to the operation of a vehicle substituted for the vehicle in respect of which the licence was granted or, as the case may be, last renewed if the licensing authority are as respects the substitute vehicle satisfied as to the matters specified in subsection (2) above, and where a taxi licence or private hire car licence extends under this subsection to a substitute vehicle, subsection (6) below shall not apply in respect of the vehicle replaced by the substitute vehicle.

(6)Subject to subsection (5) above, the holder of a taxi or private hire car licence shall within 28 days of his selling or otherwise disposing of the vehicle to which the licence relates deliver to the licensing authority his licence and any licence plate or other thing which has been issued by the licensing authority for the purpose of indicating that the vehicle is a taxi or, as the case may be, private hire car, and if without reasonable excuse he fails to do so he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F49level 2 on the standard scale].

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Amendments (Textual)

F47Words in s. 10(4) renumbered as s. 10(4)(a) (5.2.2003) by Disability Discrimination Act 1995 (c. 50), ss. 39(2)(a), 70(3) (with ss. 59, 64, 65); S.I. 2003/215, art. 2

F48S. 10(4)(b) and word added (5.2.2003) by Disability Discrimination Act 1995 (c. 50), ss. 39(2)(b), 70(3) (with ss. 59, 64, 65); S.I. 2003/215, art. 2

Marginal Citations

11 Inspection and testing of vehicles.S

(1)The holder of a taxi or private hire car licence shall present the taxi or private hire car for inspection and testing by or on behalf of the licensing authority within such period and at such place as they may by notice reasonably require.

(2)An authorised officer of a licensing authority (as respects a taxi or private hire car licensed for the area of the authority) [F50, an authorised civilian employee] or a constable shall have power at any reasonable time to inspect and test, for the purpose of ascertaining its fitness, a licensed taxi or private hire car or, for the purpose of testing its fitness or accuracy, any taximeter and if he is not satisfied as to the safety of the taxi or private hire car for the carriage of passengers or as to the fitness or accuracy of the taximeter he may by notice in writing—

(a)require the holder of the taxi or private hire car licence to make the taxi, private hire car or taximeter, as the case may be, available for further inspection at such reasonable time and place as may be specified in the notice;

(b)suspend the licence until such time as an authorised officer of the licensing authority [F51, an authorised civilian employee] or a constable is so satisfied:

Provided that, if an authorised officer [F52, employee] or constable is not so satisfied before the expiration of a period of 28 days from the date of the suspension of the licence, the said licence shall, by virtue of this subsection, be deemed to have been suspended by the licensing authority under paragraph 11 of Schedule 1 to this Act.

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Amendments (Textual)

12 Fees for taxi and private hire car licences.S

A licensing authority shall charge such fees in respect of taxi and private hire car licences and applications for such licences as may be resolved by them from time to time and shall seek to ensure that the total amount of such fees is sufficient to meet the expenses incurred by them in carrying out their functions under sections 10 to 23 (other than section 19) of this Act in relation to such licences.

13 Taxi and private hire car driving licences.S

(1)A licence, to be known as a “taxi driver’s licence” or, as the case may be, a “private hire car driver’s licence”, shall, subject to subsection (2) below, be required for driving or otherwise having charge of a taxi or private hire car.

(2)A private hire car driver’s licence shall not be required by the holder of a taxi driver’s licence for driving or otherwise having charge of a private hire car whilst in operation as such.

(3)A licensing authority shall not grant a licence to any person under this section unless that person has held, [F53throughout the period of 12 months immediately] prior to the date of his application, a licence authorising him to drive a motor car issued under Part III of the M2Road Traffic Act 1972 or a licence which would at the time of his application entitle him to such a licence without taking a test, not being a provisional licence.

[F54(3A)A licensing authority shall not grant a licence to any person under this section unless the authority is satisfied that the person is not disqualified by reason of the person's immigration status from driving a taxi or private hire car.

(3B)Section 13A makes provision for the purposes of subsection (3A) about the circumstances in which a person is disqualified by reason of the person's immigration status from driving a taxi or private hire car.

(3C)In determining for the purposes of subsection (3A) whether a person is disqualified by reason of the person's immigration status from driving a taxi or private hire car, a licensing authority must have regard to any guidance issued by the Secretary of State.]

(4)A licensing authority may, at any time, for the purposes of satisfying themselves that he is physically fit to drive a taxi or, as the case may be, private hire car, require an applicant for or holder of a taxi driver’s licence or private hire car driver’s licence to submit to medical examination, at their expense, by a medical practitioner nominated by them.

(5)A licensing authority may require an applicant for a taxi driver’s licence [F55or a private hire car driver's licence] to take a test of his knowledge of the area to which the licence is to relate, of the layout of roads in that area and such other matters relating to the operation of a taxi [F56or, as the case may be, private hire car] as the authority consider desirable, and the authority may refuse to grant a licence to a person who does not satisfy them that he has adequate knowledge of any of these matters.

(6)If a person holding a licence under this section ceases for any reason to be authorised by law to drive on a road . . . F57 the vehicle to which the licence relates, the licence shall cease to have effect.

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

[F5813APersons disqualified by reason of immigration statusE+W+S

(1)For the purposes of section 13(3A) a person is disqualified by reason of the person's immigration status from driving a taxi or private hire car if the person is subject to immigration control and—

(a)the person has not been granted leave to enter or remain in the United Kingdom, or

(b)the person's leave to enter or remain in the United Kingdom—

(i)is invalid,

(ii)has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

(iii)is subject to a condition preventing the person from driving a taxi or private hire car.

(2)Where a person is on immigration bail within the meaning of Part 1 of Schedule 10 to the Immigration Act 2016—

(a)the person is to be treated for the purposes of this section as if the person had been granted leave to enter the United Kingdom, but

(b)any condition as to the person's work in the United Kingdom to which the person's immigration bail is subject is to be treated for those purposes as a condition of leave.

(3)For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.]

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Amendments (Textual)

14 Signs on vehicles other than taxis.S

(1)Subject to subsection (2) below, there shall not be displayed on or in a private hire car any word, sign, notice, mark, illumination or other feature which may suggest that the vehicle is available for hire as a taxi.

(2)Subsection (1) above does not apply in relation to any licence plate or other thing issued by the licensing authority for the purpose of indicating that the vehicle to which it relates is a private hire car or in relation to any sign required by virtue of section 21 of the M3Vehicles (Excise) Act 1971.

(3)Any person who—

(a)drives a vehicle in respect of which subsection (1) is contravened; or

(b)causes or knowingly permits that subsection to be contravened in respect of any vehicle,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F59level 3 on the standard scale].

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Amendments (Textual)

Marginal Citations

15 Operation of taxis outside licensing areas.S

(1)A licensing authority, with the agreement of another licensing authority, may name destinations or classes of destinations in the area of the other authority and, with the agreement aforesaid, fix scales under section 17 of this Act for journeys from their area by taxis licensed by them to such destinations or classes thereof.

(2)The conditions to which a taxi or taxi driver’s licence are subject shall continue to apply while the taxi or its driver is engaged in such a journey.

(3)Nothing in this section or in Part I of this Act enables a condition to be imposed in a taxi driver’s licence requiring him to make any journey to a destination outside the area in respect of which he is licensed.

16 Journeys in England and Wales by vehicles and drivers licensed under this Act. E+W+S

In section 75 of the M4 Local Government (Miscellaneous Provisions) Act 1976 (saving for certain vehicles from requirements of Part II of that Act as to private hire vehicles), after subsection (2) there shall be inserted—

(2A)Where a vehicle is being used as a taxi or private hire car, paragraphs (a), (b) and (c) of section 46(1) of this Act shall not apply to the use or driving of the vehicle or the employment of a person to drive it if—

(a)a licence issued under section 10 of the Civic Government (Scotland) Act 1982 for its use as a taxi or, as the case may be, private hire car is then in force, and

(b)the driver holds a licence issued under section 13 of that Act for the driving of taxis or, as the case may be, private hire cars.

In this subsection, “private hire car” and “taxi” have the same meaning as in sections 10 to 22 of the Civic Government (Scotland) Act 1982

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Modifications etc. (not altering text)

C11The text of ss. 16, 18(11), 51(7) and 52(6) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Marginal Citations

17 Taxi fares.S

(1)The fares for the hire of taxis in any area and all other charges in connection with the hire of a taxi or with the arrangements for its hire shall be not greater than those fixed for that area under this section and section 18 of this Act.

[F60(2)The licensing authority must fix scales for the fares and other charges mentioned in subsection (1) within 18 months beginning with the date on which the scales came into effect.

(3)In fixing scales under subsection (2), the licensing authority may—

(a)alter fares or other charges,

(b)fix fares or other charges at the same rates.

(4)Before fixing scales under subsection (2), the licensing authority must review the scales in accordance with subsection (4A).

(4A)In carrying out a review, the licensing authority must—

(a)consult with persons or organisations appearing to it to be, or to be representative of, the operators of taxis operating within its area,

(b)following such consultation—

(i)review the existing scales, and

(ii)propose new scales (whether at altered rates or the same rates),

(c)publish those proposed scales in a newspaper circulating in its area—

(i)setting out the proposed scales,

(ii)explaining the effect of the proposed scales,

(iii)proposing a date on which the proposed scales are to come into effect, and

(iv)stating that any person may make representations in writing until the relevant date, and

(d)consider any such representations.

(4B)In subsection (4A)(c)(iv) “the relevant date” is a date specified by the licensing authority falling at least one month after the first publication by the authority of the proposed scales.

(4C)After fixing scales under subsection (2), the licensing authority must give notice in accordance with subsection (4D).

(4D)The licensing authority must—

(a)set out, and explain the effect of, the scales as fixed,

(b)notify the persons mentioned in subsection (4E) of—

(i)the date on which the scales as fixed are to come into effect, and

(ii)the rights of appeal under section 18.

(4E)Those persons are—

(a)all operators of taxis operating within their area, and

(b)the persons and organisations consulted under subsection (4A)(a).]

(5)Notice shall be given for the purposes of subsection [F61(4D)(b)] above by—

(a)its being sent by recorded delivery letter to the last known addresses of the persons and organisations referred to in subsection [F62(4E)] above so as to arrive there, in the normal course of post, not later than [F63seven days after the scales are fixed under subsection (2)] above; or

(b)personal service of the notice upon those persons within that time.

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Amendments (Textual)

F60S. 17(2)-(4E) substituted for s. 17(2)-(4) (1.11.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 174(3)(a), 206(1); S.S.I. 2011/354, art. 2, sch. (with art. 3)

18 Appeals in respect of taxi fares.S

[F64(1)Any person mentioned in subsection (1A) may, within 14 days of notice being given under section 17(4C), appeal against those scales to the traffic commissioner for the Scottish Traffic Area as constituted for the purpose of the Public Passenger Vehicles Act 1981.]

[F65(1A)Those persons are—

(a)any person who operates a taxi in an area for which scales have been fixed under section 17(2), and

(b)any person or organisation appearing to the traffic commissioner to be representative of such taxi operators.]

(2)The traffic [F66commissioner] may hear an appeal under this section notwithstanding that it was not lodged with [F67him] within the time mentioned in subsection (1) above.

(3)On an appeal F68... under subsection (1) above, the traffic [F66commissioner] may—

(a)confirm or alter the scales; or

(b)F69... decline to proceed—

(i)at any stage in the appeal, [F70if] [F71he considers] the case for the appellant is not representative of the view of a substantial proportion of the operators of taxis operating in the area of the licensing authority;

(ii)if less than two years have elapsed since [F71he decided] an appeal against a decision of the same authority in respect of the same scale, and [F71he considers] it inappropriate that [F71he should consider] the matter again.

(4)An appeal under this section shall have the effect of suspending the decision referred to in subsection (1) above until the date when the appeal is abandoned or, as the case may be, when notice is given to the appellant advising him of its disposal.

(5)Where [F72he alters] scales under subsection (3)(a) above, the traffic [F66commissioner] may substitute a different date for the coming into effect of these scales.

(6)The Secretary of State may [F73by order made by statutory instrument] make rules as to procedure in relation to appeals under this section.

(7)The decision of the traffic [F66commissioner] on an appeal under this section shall be final.

(8)The traffic [F66commissioner] shall give notice of [F74his] decision in writing to the appellant and to the licensing authority and notice shall be given to the appellant by—

(a)its being sent by recorded delivery letter to his last known address or, as the case may be, to them so as to arrive, in the normal course of post, not later than five days after [F74his] decision; or

(b)personal service of the notice on the appellant within that time.

F75(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)A licensing authority shall pay the expenses incurred under this section by the traffic commissioners in relation to appeals under this section.

F76(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F71Words substituted as provided by Transport Act 1985 (c. 67, SIF 126), s. 3, Sch. 2 para. 5(c)

[F7718APublication and coming into effect of taxi faresE+W+S

(1)Following the fixing of scales by a licensing authority under section 17(2), the licensing authority must—

(a)determine the date on which the scales are to come into effect, and

(b)publish the scales in accordance with subsections (3) to (5).

(2)The scales may come into effect no earlier than seven days after the date on which they are published.

(3)The licensing authority must—

(a)give notice of the scales by advertisement in a newspaper circulating in its area, and

(b)specify in that advertisement the date on which the scales are to come into effect.

(4)The authority must give notice of the scales—

(a)where no appeal has been lodged under subsection (1) of section 18, as soon as practicable after the expiry of the period of 14 days mentioned in that subsection,

(b)where such an appeal has been lodged, as soon as practicable after the determination of the appeal.

(5)For the purposes of subsection (4), an appeal is determined on the date on which the appeal is abandoned or notice is given to the appellant of its disposal.]

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Amendments (Textual)

19 Taxi stances.S

(1)A licensing authority may, after consultation with persons or organisations appearing to them to be, or be representative of, the operators of taxis operating in their area, appoint stances for taxis for the whole or any part of a day in any road within their area or on any land owned by the authority, or, with the consent of the owner, on any land owned by him.

(2)A licensing authority may—

(a)erect and illuminate signs;

(b)cause lines or marks to be made on roads;

indicating the limits of taxi stances.

(3)A licensing authority may from time to time, after consultation as mentioned in subsection (1) above, vary the number of taxis permitted to be at each stance and alter the position of such stances or revoke the appointment thereof.

(4)Before appointing any stance for taxis or varying the number of taxis permitted to be at each stance, the licensing authority shall give notice to the chief constable of the area in which the stance is situated and shall also give public notice of the proposal by advertisement in at least one newspaper circulating in their area and shall take into consideration any objections or representations in respect of such proposal which may be made to them in writing within 28 days of the first publication of such notice.

(5)Nothing in this section shall empower a licensing authority to appoint any taxi stance so as unreasonably to prevent access to any premises or, without the consent of the [F78roads authority], to appoint any taxi stance on any [F79road] or erect or illuminate any sign there or cause any line or mark to be made on any road . . . F80

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Amendments (Textual)

20 Regulations relating to taxis and private hire cars and their drivers.S

(1)Notwithstanding paragraph 5(2) of Schedule 1 to this Act, the Secretary of State may by regulations provide that licensing authorities shall, in relation to taxi, private hire car, taxi drivers’ or private hire car drivers’ licences, impose such conditions or classes of conditions as may be prescribed in the regulations and shall not impose such other conditions or classes of conditions as may be so prescribed [F81and may provide that such conditions shall be imposed or, as the case may be, shall not be imposed for different areas or classes of areas; and different conditions or classes of conditions may be prescribed in relation to different categories of taxi or private hire car.]

(2)The Secretary of State may by regulations F82... prescribe types, sizes and designs of vehicles for the purposes of section 10(4) of this Act and, in doing so, may prescribe different types, sizes or designs of vehicles in respect of different areas.

[F83(2A)Without prejudice to the generality of subsections (1) and (2) above, regulations under those subsections may make such provision as appears to the Secretary of State to be necessary or expedient in relation to the carrying in taxis of disabled persons (within the meaning of [F84section 6 of the Equality Act 2010] ) and such provision may in particular prescribe—

(a)requirements as to the carriage of wheelchairs, guide dogs, hearing dogs and other categories of dog;

(b)a date from which any such provision is to apply and the extent to which it is to apply; and

(c)the circumstances in which an exemption from such provision may be granted in respect of any taxi or taxi driver,

and in this subsection—

  • guide dog” means a dog which has been trained to guide a blind person;

  • hearing dog” means a dog which has been trained to assist a deaf person; and

  • other categories of dog” means such other categories of dog as the Secretary of State may prescribe, trained to assist disabled persons who have disabilities of such kinds as he may prescribe.]

[F85(2AA)The Scottish Ministers may by regulations make such provision as appears to them to be necessary or expedient in relation to the carrying in private hire cars of disabled persons (within the meaning of [F86section 6 of the Equality Act 2010] ) and such provision may in particular prescribe—

(a)requirements as to the carriage of guide dogs, hearing dogs and other categories of dogs;

(b)a date from which any such provision is to apply and the extent to which it is to apply; and

(c)the circumstances in which an exemption from such provision may be granted in respect of any private hire car or private hire car driver,

and in this subsection “guide dog”, “hearing dog” and “other categories of dog” have the same meaning as in subsection (2A) above.

(2AB)Regulations under subsection (2AA) above may provide for the creation of offences and for making offenders liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2AC)Regulations under subsection (2AA) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.]

(3)Regulations under [F87subsection (1) or (2) above] shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

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Amendments (Textual)

F84Words in s. 20(2A) substituted by 2010 c. 15, Sch. 26 Pt. 1 para. 7(2) (as inserted) (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 2 (see S.I. 2010/2317, art. 2)

F86Words in s. 20(2AA) substituted by 2010 c. 15, Sch. 26 Pt. 1 para. 7(3) (as inserted) (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 2 (see S.I. 2010/2317, art. 2)

Modifications etc. (not altering text)

C12S. 20: transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7); S.I. 1998/3178, art. 3

21 Offences.S

(1)If any person—

(a)operates, or permits the operation of, a taxi within an area in respect of which its operation requires to be but is not licensed or the driver requires to be but is not licensed, or

(b)picks up passengers in, or permits passengers to be picked up by, a private hire car within an area in respect of which its operation requires to be but is not licensed or the driver requires to be but is not licensed,

that person shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F88level 4 on the standard scale].

(2)Subsection (1) above does not apply to the operation of a taxi or private hire car within an area in respect of which its operation or its driver is not licensed if the request for its hiring was received by its driver [F89(otherwise than in a public place from the person to be conveyed in it, or a person acting on his behalf, for a journey beginning there and then)] whilst—

(a)in the area or in that part thereof in respect of which its operation and its driver are licensed;

(b)engaged on hire on a journey which began in that area or part or will end there; or

(c)returning to that area or part immediately following completion of a journey on hire.

(3)Subsection (1)(b) above does not apply to the operation of a vehicle within an area in respect of which its operation or its driver is not licensed if there are in force—

(i)in respect of the vehicle, a licence under section 37 of the M5Town Police Clauses Act 1847 (licensing of hackney carriages) or section 48 of the M6Local Government (Miscellaneous Provisions) Act 1976 (licensing of private hire vehicles); and

(ii)in respect of its driver, a licence under section 46 of the said Act of 1847 (licensing of hackney carriage drivers) or, as the case may be, section 51 of the said Act of 1976 (licensing of drivers of private hire vehicles).

[F90(3A)Subsection (1)(b) above does not apply to the operation of a vehicle within an area in respect of which its operation or its driver is not licensed if there are in force—

(a)in respect of the vehicle, a licence under section 7 of the Private Hire Vehicles (London) Act 1998; and

(b)in respect of its driver, a licence under section 13 of that Act.]

(4)If any person, being the holder of a taxi licence or private hire car licence in respect of a vehicle, permits another person who does not have a current taxi driver’s licence or private hire car driver’s licence, as the case may be, to operate the vehicle as a taxi or, as the case may be, a private hire car he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F88level 4 on the standard scale].

(5)If any person demands fares or other charges in respect of the hire of a taxi or for the hire of a private hire car which is fitted with a taximeter in excess of the scales established under sections 17 and 18 of this Act, he shall be guilty of an offence and liable on summary conviction, to a fine not exceeding [F88level 4 on the standard scale].

(6)If any person without good cause breaks the seal on a taximeter or operates or drives a taxi or private hire car knowing that the seal on its meter has been broken, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F88level 4 on the standard scale] or to imprisonment for a period not exceeding 60 days or to both.

(7)If any person, without reasonable excuse, causes or permits any vehicle other than a taxi to wait on any stance for taxis during any period for which that stance has been appointed by a licensing authority under section 19 of this Act, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F88level 2 on the standard scale].

(8)Notice of the effect of subsection (7) above shall be indicated by such traffic signs as may be prescribed as authorised for the purpose by the Secretary of State in pursuance of his powers under section 54 of the M7Road Traffic Regulation Act 1967.

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Amendments (Textual)

Marginal Citations

22[F91Exemptions]S

[F92(1)] Nothing in sections 10 to 21 (with the exception of subsection (7) of section 21) of this Act shall—

(a)apply to a vehicle used for bringing passengers or goods within and taking them out of an area in respect of which the vehicle is not licensed as a taxi or a private hire car in pursuance of a contract for the hire of the vehicle made outside the area if the vehicle is not made available for hire within the area;

(b)apply to a vehicle while it is being used in connection with a funeral or wedding;

(c)apply to any vehicle while it is being used for carrying passengers under a contract for its exclusive hire for a period of not less than 24 hours.

[F93(2)The Scottish Ministers may by regulations specify further circumstances in which sections 10 to 21 (with the exception of subsection (7) of section 21) are not to apply.

(3)Regulations under subsection (2)—

(a)may make transitional, transitory and saving provision,

(b)are subject to the negative procedure.]

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Amendments (Textual)

F92S. 22(1): s. 22 renumbered as s. 22(1) (1.12.2015) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 65(2), 88(2); S.S.I. 2015/382, art. 2, sch.

23 Interpretation of sections 10 to 22.S

(1)In sections 10 to 22 of this Act—

  • taxi” means a hire car which is engaged, by arrangements made in a public place between the person to be conveyed in it (or a person acting on his behalf) and its driver for a journey beginning there and then; and

  • private hire car” means a hire car other than a taxi within the meaning of this subsection.

(2)In subsection (1) above, “hire car” means a motor vehicle with a driver (other than a vehicle being a public service vehicle within the meaning of section 1(1)(a) of the M8Public Passenger Vehicles Act 1981) which is, with a view to profit, available for hire by the public for personal conveyance.

(3)Notwithstanding that a vehicle in respect of which there is a licence for its operation as a taxi is, on any occasion, engaged as a hire car otherwise than in the manner referred to in subsection (1) above, the enactments relating to its operation as a taxi, and to the driving of it as such (including any such enactments in this Act) shall nonetheless apply in relation to it; and that other manner of engagement on that occasion shall not of itself cause the operation or driving of the licensed taxi to be regarded for the purposes of this Act as the operation or driving of a private hire car within the meaning of subsection (1) above.

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Marginal Citations

Licensing and regulation of second-hand dealersS

24 Second-hand dealers’ licences.S

(1)Subject to subsection (3) below, a licence, to be known as a “second-hand dealer’s licence”, shall be required for carrying on business as a second-hand dealer.

(2)In this section and in sections 25 to 27 and 36 of this Act “second-hand dealer” means a person carrying on a business as a dealer in second-hand goods or articles of any description.

(3)A second-hand dealer’s licence shall not be required for carrying on—

(a)the business of a pawnbroker (that is to say, a person who, under a regulated agreement under the M9Consumer Credit Act 1974, takes an article in pawn);

(b)a business as a wholesale dealer purchasing exclusively from second-hand dealers licensed under this Act;

[F94(c)the business of a charity (that is to say, a body which is entered in the Scottish Charity Register);]

(d)a business as a dealer in second-hand goods or articles incidentally to another business not being that of a dealer in such goods or articles;

(e)a business either of financing the acquisition of goods by means of hire-purchase agreements, conditional sale agreements or credit sale agreements (as defined in section 189(1) of the M10Consumer Credit Act 1974) or of financing the use of goods by means of hiring agreements.

(4)Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority may, after consultation with the chief constable, attach conditions to a second-hand dealer’s licence requiring the keeping of records in relation to the dealer’s stock-in-trade; and conditions so attached may, without prejudice to the authority’s power under this subsection, include provision as to—

(a)the information to be included in these records;

(b)their form;

(c)the premises where they are to be kept; and

(d)the period for which they are to be kept.

(5)A second-hand dealer acquiring a second-hand motor vehicle for the purpose of its re-sale in the course of his business shall keep a record of the mileage reading on the vehicle’s odometer when he acquired it.

(6)Any person who contravenes subsection (5) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F95level 3 on the standard scale].

(7)It shall be a defence for a person charged with an offence under subsection (6) above to prove that he used all due diligence to prevent the commission of the offence.

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Amendments (Textual)

Marginal Citations

25 Disposal of stock-in-trade.S

(1)Subject to subsections (2) and (3) below and section 27 of this Act, a second-hand dealer shall not dispose of any item of his stock-in-trade until the expiry of 48 hours (excluding any time on Saturdays or Sundays) after he acquired it.

(2)Subsection (1) above shall not apply to any article acquired by the dealer in a public roup and disposed of by him without being brought to his place of business.

(3)A licensing authority may, on granting a second-hand dealer’s licence or at any time thereafter, on application by the dealer and after consultation with the chief constable, order that subsection (1) above shall not apply to the disposal by the dealer of any item, or any specified item or class of items, of his stock-in-trade or any specified part of it.

(4)An order under subsection (3) above may—

(a)be made subject to such conditions as the authority think fit;

(b)relate to stock-in-trade or items thereof still to be acquired by the dealer to whom the order relates; or

(c)be varied or revoked at any time by the licensing authority.

(5)In subsection (3) above, “specified” means specified in an order under that subsection.

(6)A holder of a second-hand dealer’s licence may appeal to the sheriff against a decision of the licensing authority under this section and paragraph 24(3) to (9) and (11) and (12) of Schedule 1 to this Act shall, with any necessary modifications, apply to an appeal under this subsection.

(7)Any person who contravenes subsection (1) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F96level 3 on the standard scale].

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Amendments (Textual)

26 Sellers of second-hand goods: offences etc.S

(1)Any person who, when selling anything to a second-hand 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 [F97level 3 on the standard scale].

(2)If anything is offered to a second-hand dealer in the course of his business and he has reason to believe that it has been stolen or otherwise unlawfully obtained he may, subject to subsection (3) below, detain the person offering it and a constable may arrest that person and take possession of it.

(3)Nothing in subsection (2) above authorises a second-hand dealer to detain a person longer than is reasonably necessary for obtaining the attendance of a constable.

(4)No civil liability shall arise as a result only of the detention in good faith of a person under subsection (2) above.

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Amendments (Textual)

27 Functions of the court in relation to second-hand dealers convicted of offences.S

(1)Where a second-hand dealer is convicted of an offence relating to second-hand dealing, 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 second-hand dealer is convicted—

(a)of an offence relating to second-hand dealing; or

(b)of an 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 any second-hand goods acquired by him until the expiry of a period of 7 days after their 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 [F98level 4 on the standard scale] or to imprisonment for a period not exceeding 60 days or to both.

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Amendments (Textual)

[F99Licensing and regulation of knife dealersE+W+S

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Amendments (Textual)

F99Ss. 27A-27S and cross-heading inserted (1.11.2007 for specified purposes, 1.6.2009 for specified purposes, 1.9.2009 for specififed purposes, 1.6.2010 in so far as not already in force) by Custodial Sentences and Weapons (Scotland) Act 2007 (asp 17), ss. 58, 67(2); S.S.I. 2007/431, art. 3, sch., S.S.I. 2009/197, art. 2, Sch.

27AKnife dealers' licencesE+W+S

(1)A licence, to be known as a “knife dealer's licence”, is required for carrying on business as a dealer in any article mentioned in subsection (2).

(2)Those articles are—

(a)knives (other than [F100folding pocket knives whose blades do not exceed 3.5 inches (8.91 centimetres) in length or knives] designed for domestic use);

[F101(aa)daggers (other than kirpans or skean dhus whose blades do not exceed exceed 3.5 inches (8.91 centimetres) in length);]

(b)knife blades (other than those designed for domestic use);

(c)swords;

(d)any other article—

(i)which has a blade; or

(ii)which is sharply pointed,

and which is made or adapted for use for causing injury to the person.

(3)A knife dealer's licence shall, in addition to specifying the activity which the dealer engages in, specify the premises in or from which the activity is to be carried on.

(4)In subsections (1) and (3), “dealer” means a person carrying on a business which consists wholly or partly of—

(a)selling;

(b)hiring;

(c)offering for sale or hire;

(d)exposing for sale or hire;

(e)lending; or

(f)giving,

to persons not acting in the course of a business or profession any article mentioned in subsection (2) (whether or not the activities mentioned in paragraphs (a) to (f) are carried out incidentally to a business which would not, apart from this section, require a knife dealer's licence).

(5)In subsection (4), “selling”, in relation to an article mentioned in subsection (2)—

(a)includes—

(i)selling such an article by auction;

(ii)accepting goods or services in payment (whether in part or in full) for such an article; but

(b)does not include selling (by auction or otherwise) such an article by one person on behalf of another;

and “sale” is to be construed accordingly.

(6)For the purposes of subsection (4), an article is not to be treated as being exposed for sale if it is exposed for sale (by auction or otherwise) by a person other than the owner.

(7)The Scottish Ministers may by order modify subsection (2) so as to—

(a)add articles or classes of article;

(b)amend descriptions of articles or classes of article;

(c)remove articles or classes of article.

(8)The Scottish Ministers may by order—

(a)modify subsection (4) so as to modify the definition of “dealer”;

(b)specify descriptions of activity which are not to be taken to be businesses for the purposes of that subsection (or that subsection as modified).

(9)The power in subsection (8)(a) includes in particular power to add descriptions of business.

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Amendments (Textual)

F100Words in s. 27A(2)(a) substituted (1.9.2009) by The Knife Dealers (Exceptions) Order 2009 (S.S.I. 2009/218), arts. 1, 2(a)

Modifications etc. (not altering text)

27BApplications for knife dealers' licences: noticeE+W+S

(1)A licensing authority must cause public notice to be given of every application made to them for the grant or renewal of a knife dealer's licence.

(2)Sub-paragraph (8) of paragraph 2 of Schedule 1 applies to the giving of public notice under subsection (1) as it applies to the giving of public notice under sub-paragraph (7) of that paragraph.

27CKnife dealers' licences: conditionsE+W+S

(1)In granting or renewing a knife dealer's licence, a licensing authority—

(a)must attach to the licence such conditions as are specified (in particular or in general) by order by the Scottish Ministers;

(b)may, without prejudice to [F102 section 3B and ] paragraph 5 of Schedule 1, attach to the licence different conditions in relation to different articles or different classes of article;

(c)may, without prejudice to that [F103 section and ] paragraph, attach to the licence conditions for or in connection with—

(i)the keeping of records by the holder of the licence;

(ii)the storage of articles mentioned in section 27A(2); and

(iii)the display of such articles.

(2)An order under subsection (1)(a) may provide for different conditions to apply to different articles or different classes of article.

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Amendments (Textual)

27DProvision of information to holder of knife dealer's licenceE+W+S

(1)Subsection (2) applies where the holder of a knife dealer's licence (“the dealer”)—

(a)is required by the licence to obtain information of a type specified in the licence from a person; and

(b)the dealer requests (whether orally, in writing or otherwise) the information from the person.

(2)A person, or any person acting on behalf of the person, who knowingly or recklessly provides false information in response to a request under subsection (1)(b) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

27EKnife dealers' licences: warrants to enter, search and seize articlesE+W+S

(1)Subsection (2) applies if a justice of the peace or sheriff is satisfied by evidence on oath that—

(a)subsection (3) applies; and

(b)subsection (4) or (5) applies.

(2)The justice of the peace or sheriff may grant a warrant authorising a constable or an authorised officer—

(a)to enter and search the premises specified in the warrant; and

(b)to seize and remove any relevant article.

(3)This subsection applies if there are reasonable grounds for suspecting that a person (the “suspect”) is carrying on in any premises an activity in respect of which a knife dealer's licence is required under section 27A.

(4)This subsection applies if no knife dealer's licence is in force in respect of the activity.

(5)This subsection applies if a knife dealer's licence is in force in respect of the activity but there are reasonable grounds for suspecting that the suspect has failed, or is failing, to comply with a condition of the licence.

27FPowers of constables and authorised officersE+W+S

(1)A constable or an authorised officer may use reasonable force in executing a warrant granted under section 27E(2).

(2)Where a constable who is not in uniform is about to enter, is entering or has entered any premises under the powers conferred under section 27E(2) he must, if required to do so by a person in or upon the premises, produce his identification.

(3)Where an authorised officer is about to enter, is entering or has entered any premises under the powers conferred under section 27E(2) he must, if required to do so by a person in or upon the premises, produce his authorisation.

(4)If a constable has been required to produce his identification under subsection (2) he is not entitled to enter or search the premises or, as the case may be, remain there or continue to search the premises until he has produced it.

(5)If an authorised officer has been required to produce his authority under subsection (3), he is not entitled to enter or search the premises or, as the case may be, remain there or continue to search the premises until he has produced it.

(6)Any person who—

(a)fails without reasonable excuse to permit a constable, or an authorised officer, acting in pursuance of a warrant granted under section 27E(2) to enter and search any premises; or

(b)obstructs the entry to, or search of, any premises by a constable or an authorised officer so acting,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7)Any relevant article which has been seized and removed under a warrant granted under section 27E(2) may be retained until the conclusion of proceedings against the suspect.

(8)For the purposes of subsection (7), proceedings in relation to a suspect are concluded if—

(a)he is found guilty and sentenced or otherwise dealt with for the offence;

(b)he is acquitted;

(c)proceedings for the offence are discontinued;

(d)it is decided not to prosecute him.

(9)In this section, “suspect” is to be construed in accordance with section 27E(3).

27GPower to inspect documentsE+W+S

(1)Subsection (2) applies where—

(a)a constable or an authorised officer has reasonable grounds for suspecting that an activity in respect of which a knife dealer's licence is required under section 27A is being carried on; and

(b)no such licence is in force in respect of the activity.

(2)The constable or authorised officer may—

(a)require a relevant person to produce any records or other documents connected with the activity,

(b)inspect any such records or documents, and

(c)take copies of, or extracts from, any such records or documents.

(3)A relevant person who—

(a)is required under subsection (2) to produce records or documents; and

(b)fails without reasonable excuse to do so,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4)Before exercising the power conferred by subsection (2)—

(a)a constable who is not in uniform must produce his identification to the relevant person;

(b)an authorised officer must produce his authorisation to the relevant person.

(5)For the purposes of this section, a person is “relevant” if the constable or authorised officer has reasonable grounds for believing that the person has access to the records or documents.

27HSections 27E to 27G: interpretationE+W+S

(1)In sections 27E and 27F—

  • premises” includes a vehicle or vessel;

  • relevant article” means an article mentioned in any of paragraphs (a) to (d) of subsection (2) of section 27A.

(2)In sections 27E to 27G, “authorised officer” means an officer of a licensing authority authorised by the authority for the purposes of section 27E, 27F or, as the case may be, 27G.

27JForfeiture ordersE+W+S

(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—

    (a)

    the time of the offender's arrest for the offence; or

    (b)

    the time of his being cited as an accused in respect of the offence.

27KEffect of forfeiture orderE+W+S

(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.

27LOffences by partnershipsE+W+S

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.

27MAppropriate licence requiredE+W+S

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.

27NRemote sales of knives etc.E+W+S

(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.

27PSales and dispatches in different local authority areasE+W+S

(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.

27QDuty to avoid conflict between conditions of licencesE+W+S

(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.

27ROffences in relation to knife dealers' licences: exceptionsE+W+S

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.

27SOrders under sections 27A to 27RE+W+S

(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.]

Licensing and regulation of metal dealersS

28 Metal dealers: licensing and regulation.S

(1)[F104A]metal dealer’s licence”, shall be required for carrying on business as a metal dealer.

F105(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F105(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.

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Amendments (Textual)

F10629 Metal dealers’ exemption warrants.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F10730 Keeping of records.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F10831 Retention of metal.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

32 Itinerant metal dealers.S

(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.

F10933 Receipts and invoices: itinerant metal dealers.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

[F11033AAcceptable forms of payment for metalS

(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.

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Amendments (Textual)

33BAcceptable forms of payment: meaning of “bank or building society account”S

(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.]

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Amendments (Textual)

[F11133CRequirement to keep recordsS

(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.

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Amendments (Textual)

F111Ss. 33C-33E inserted (1.12.2015 for the insertion of s. 33C for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 70(3), 88(2); S.S.I. 2015/382, art. 2, sch.

33DForm of recordsS

(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).

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Amendments (Textual)

F111Ss. 33C-33E inserted (1.12.2015 for the insertion of s. 33C for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 70(3), 88(2); S.S.I. 2015/382, art. 2, sch.

33EMetal dealer to keep records for each place of businessS

(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).]

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Amendments (Textual)

F111Ss. 33C-33E inserted (1.12.2015 for the insertion of s. 33C for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 70(3), 88(2); S.S.I. 2015/382, art. 2, sch.

34 Offences relating to metal dealing.S

(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 [F112level 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.

[F113(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 [F114produces 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 [F112level 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 [F112level 3 on the standard scale].

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Amendments (Textual)

35 Functions of the court in relation to metal dealers convicted of offences.S

(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 [F115level 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.

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Amendments (Textual)

[F11635ARegister of metal dealers and itinerant metal dealersS

(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.]

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Amendments (Textual)

36 Appropriate licence required.S

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.

37 Interpretation of sections 28 to 36.S

(1)In sections 28 to 36 of this Act—

  • [F117itinerant metal dealer” means a person who—

    • (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,

      (b)

      collects articles of the kind described in paragraph (a)(i) and (ii) by means of visits from place to place, and

      (c)

      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)[F118For 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).]

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Amendments (Textual)

F117Words in s. 37(1) substituted (16.3.2016 for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 72(2), 88(2); S.S.I. 2016/85, art. 2, sch. (with arts. 4, 6)

F118S. 37(2)(3) substituted for s. 37(2) (16.3.2016 for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 72(3), 88(2); S.S.I. 2016/85, art. 2, sch. (with arts. 4, 6)

[F11937AExemptionsS

(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.]

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Amendments (Textual)

Miscellaneous licencesS

38 Boat hire licences.S

(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 [F120Merchant 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 M11Harbours 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 [F121level 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.

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Amendments (Textual)

F120Words in s. 38(4)(a) substituted (1.1.1996) by 1995 c. 21, ss. 314(2), 316(2), Sch. 13 para. 67 (with s. 312(1))

Marginal Citations

39 Street traders’ licences.S

(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 [F122regulations 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 M12Pedlars 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 [F123sections 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 [F124a food] authority (for the purposes of section 5 of the Food Safety Act 1990) [F125mentioned in subsection (4A)] stating that the vehicle, kiosk or moveable stall complies with [F126such requirements as the Scottish Ministers may by order made by statutory instrument specify].

[F127(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.]

[F128(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.]

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Amendments (Textual)

Marginal Citations

40 Market operators’ licences.S

(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.

41 Public entertainment licences.S

(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 whereF129... 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;

[F130(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;]

(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 the M13Theatres Act 1968 [F131or section 1 of the Cinemas Act 1985] ;

[F132(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)[F133premises 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 [F134licensed] hours within the meaning of that Act; F135...

(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.[F136, or

(h)such other premises as the Scottish Ministers may by order made by statutory instrument specify.]

[F137(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 [F138 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.

(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 M14Education (Scotland) Act 1980 but includes a university and a theological college.

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Amendments (Textual)

F134Word in s. 41(2)(f) substituted (1.9.2009 at 5.00 a.m.) by Licensing (Scotland) Act 2005 (asp 16), s. 150(2), sch. 6 para. 6(2)(b) (with s. 143); S.S.I. 2007/472, art. 3

Marginal Citations

[F13941A Indoor sports entertainment licences.S

(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).]

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Amendments (Textual)

42 Late hours catering licences.S

(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 [F140food] .

(2)The reference in subsection (1) above to the sale of [F141food] is a reference to the sale of [F141food] for consumption on as well as off the premises in which [F142it 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 [F143food] for consumption on the premises from those fixed for the sale of [F143food] 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 [F1442005 (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.

[F145(7)In this section “food” has the meaning given in section 1 of the Food Safety Act 1990 (c.16).]

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Amendments (Textual)

F144Words in s. 42(4)(a) substituted (1.9.2009 at 5.00 a.m.) by Licensing (Scotland) Act 2005 (asp 16), s. 150(2), sch. 6 para. 6(3) (with s. 143); S.S.I. 2007/472, art. 3

43 Window cleaners’ licences.S

A licence, to be known as a “window cleaner’s licence” shall be required for carrying on the trade of, or being employed as, a window cleaner.

44 Additional activities.S

(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 [F146level 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.

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Subordinate Legislation Made

P1S. 44: s. 44 power exercised by S.I. 1991/1253. For previous exercise of power see Index to Government Orders.

Amendments (Textual)

Modifications etc. (not altering text)

Part IIIS Control of Sex Shops

45 Control of sex shops.S

(1)A [F147local 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 [F147local 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 [F147authority’s]area, 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.

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Amendments (Textual)

F147Words in s. 45(1)(2) substituted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 129(3); S.I. 1996/323, art. 4(1)(c)

[F14845ALicensing of sexual entertainment venues: interpretationS

(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—

    (a)

    the person (“A”) who is responsible for—

    (i)

    the management of the premises, or

    (ii)

    the organisation or management of the sexual entertainment, or

    (b)

    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—

    (a)

    any live performance, or

    (b)

    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.

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Amendments (Textual)

F148Ss. 45A-45C inserted (1.12.2015 for the insertion of s. 45A for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 76(3), 88(2); S.S.I. 2015/382, art. 2, sch.

45BLicensing of sexual entertainment venuesS

(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)in sub-paragraph (2), at the beginning insert “ Subject to sub-paragraph (3A), ”, and

(ii)after sub-paragraph (3) insert—

(3A)If a local authority consider it appropriate to do so in relation to an application, the local authority may dispense with the requirement to publish an advertisement under sub-paragraph (2) and may instead publish notice of the application electronically.

(3B)Publication under sub-paragraph (3A) must be not later than 7 days after the date of the application.

(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.

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Amendments (Textual)

F148Ss. 45A-45C inserted (1.12.2015 for the insertion of s. 45A for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 76(3), 88(2); S.S.I. 2015/382, art. 2, sch.

45CStatements of policy in relation to sexual entertainment venuesS

(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.]

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Amendments (Textual)

F148Ss. 45A-45C inserted (1.12.2015 for the insertion of s. 45A for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 76(3), 88(2); S.S.I. 2015/382, art. 2, sch.

[F14945DDeemed grant of applicationsS

(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.]

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Amendments (Textual)

[F150Conditions of licences granted under this PartS

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Amendments (Textual)

F150Ss. 45E, 45F and cross-heading inserted (1.12.2015 for the insertion of s. 45E for specified purposes) by Air Weapons and Licensing (Scotland) Act 2015 (asp 10), ss. 80(2), 88(2); S.S.I. 2015/382, art. 2, sch.

45EMandatory licence conditionsS

(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.

45FStandard licence conditionsS

(1)A local authority may determine conditions to which licences granted by them under this Part are to be subject.

(2)Conditions determined under subsection (1) are referred to in this Part as “standard conditions”.

(3)Different conditions may be determined under subsection (1)—

(a)in respect of different licences or different types of licence,

(b)otherwise for different purposes, circumstances or cases.

(4)A local authority must publish, in such manner as they think appropriate, any standard conditions determined by them.

(5)Standard conditions have no effect—

(a)unless they are published, and

(b)so far as they are inconsistent with any mandatory conditions.

(6)Subsection (1) is subject to paragraph 9(1A) of Schedule 2.]

[F151PART 3AE+W+SCIVIC LICENSING STANDARDS OFFICERS

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Amendments (Textual)

45GCivic licensing standards officersE+W+S

(1)Each local authority must appoint for their area one or more officers (a “civic licensing standards officer”)—

(a)to exercise, in relation to the authority's area, the general functions conferred on civic licensing standards officers by virtue of section 45H, and

(b)to exercise any other functions that may be conferred on such an officer by virtue of this or any other enactment.

(2)A civic licensing standards officer appointed by a local authority is taken to be an authorised officer of the authority for the purposes of Parts 1 to 3.

(3)A person may hold more than one appointment under subsection (1) (so as to be a civic licensing standards officer for more than one local authority area).

(4)Nothing in this section prevents an officer of a local authority other than a civic licensing standards officer from being an authorised officer of the authority for a purpose of Parts 1 to 3.

(5)In this Part, a reference to a local authority includes a reference to that authority acting as the licensing authority for their area and a reference to an authorised officer of a local authority (however expressed) is to be construed accordingly.

45HGeneral functions of a civic licensing standards officerE+W+S

(1)The general functions of a civic licensing standards officer are—

(a)to provide to any interested person information and guidance concerning the operation of Parts 1 to 3 in the officer's area,

(b)to supervise the compliance by the holder of a licence granted under Parts 1 to 3 in the officer's area with—

(i)the conditions of the licence, and

(ii)the other requirements of Parts 1 to 3,

(c)to provide mediation services for the purposes of avoiding or resolving disputes or disagreements between—

(i)the holder of a licence granted under Parts 1 to 3 in the officer's area, and

(ii)any other person,

concerning any matter relating to compliance with the conditions of the licence or the other requirements of Parts 1 to 3.

(2)The function under subsection (1)(b) includes, in particular, power for a civic licensing standards officer, where the officer believes that a condition to which the licence is subject has been or is being breached—

(a)to give a notice to the holder of the licence requiring such action to be taken to remedy the breach as may be specified in the notice, and

(b)to refer the breach to the local authority which granted the licence for consideration at a meeting of the authority.

(3)A civic licensing standards officer may only refer a breach of a condition under subsection (2)(b) if—

(a)the officer has given notice under subsection (2)(a) and the holder of the licence has failed to comply with it, or

(b)the officer considers that it is appropriate for the breach to be referred to the authority without such a notice being given.

(4)In this section, a reference to an officer's area is a reference to—

(a)the local authority area for which the officer is appointed under section 45G(1), or

(b)where the officer is appointed for more than one local authority area, the area for which the officer is exercising a function at the relevant time.]

Part IVS Offences, Powers of Constables, etc.

Offences of annoying, offensive, obstructive or dangerous behaviourS

46 Soliciting and importuning by prostitutes.S

(1)A prostitute (whether male or female) who for the purposes of prostitution—

(a)loiters in a public place;

(b)solicits in a public place or in any other place so as to be seen from a public place; or

(c)importunes any person who is in a public place,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F152level 2 on the standard scale].

(2)In subsection (1) above, “public place” has the same meaning as in section 133 of this Act but includes—

(a)any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and

(b)any public conveyance other than a taxi or hire car within the meaning of section 23 of this Act.

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Amendments (Textual)

47 Urinating etc.S

Any person who urinates or defecates in such circumstances as to cause, or to be likely to cause, annoyance to any other person shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F153level 2 on the standard scale].

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Amendments (Textual)

F15448 Dogs: fouling of pavements.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

49 Dangerous and annoying creatures.S

(1)Any person who suffers or permits any creature in his charge to cause danger or injury to any other person who is in a public place or to give such person reasonable cause for alarm or annoyance shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F155level 2 on the standard scale].

(2)A district court may, if satisfied that any creature kept in the vicinity of any place where a person resides is giving that person, while in that place, reasonable cause for annoyance, make an order requiring the person keeping the creature to take, within such period as may be specified in the order, such steps (short of destruction of the creature) to prevent the continuance of the annoyance as may be so specified.

(3)An application to a district court for an order under subsection (2) above may be made by any person.

(4)Any person who fails to comply with an order under subsection (2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F155level 3 on the standard scale].

(5)The fact that there is a licence under the M15Dangerous Wild Animals Act 1976 in respect of a creature shall not of itself afford a defence in proceedings under this section relating to that creature.

(6)Where a court convicts a person of an offence under this section or discharges him absolutely F156..., it may, whether or not (in the case of conviction) it imposes a penalty under subsection (1) or (4) above—

(a)subject to subsection (8) below, make such order as it sees fit as to the disposal of the creature to which the proceedings relate;

(b)authorise a constable, in pursuance of such an order, to take possession of the creature.

(7)An order under subsection (6) above may, subject to any enactment relating to the protection or conservation of living things, be for the destruction of the creature to which it relates.

(8)No creature disposed of under an order under subsection (6) above shall be given or sold for the purposes of vivisection.

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Amendments (Textual)

Marginal Citations

50 Drunkenness.S

(1)Any person who, while not in the care or protection of a suitable person, is, in a public place, drunk and incapable of taking care of himself shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F157level 2 on the standard scale].

(2)Any person who is drunk in a public place while in charge of a child under the age of 10 shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F157level 2 on the standard scale].

(3)For the purposes of subsection (2) above, if a child appears to the court to be under the age of 10, the child shall be deemed to be under that age unless the contrary is proved.

(4)A constable may arrest a person for contravening subsection (2) above if he has reasonable cause to believe that the child in the charge of that person is under the age of 10.

(5)Any person who is drunk in a public place while in possession of a firearm (including a crossbow, airgun, air rifle or air pistol) shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F157level 2 on the standard scale].

(6)In this section, “public place” has the same meaning as in section 133 of this Act but includes—

(a)any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and

(b)any public conveyance other than a taxi or hire car within the meaning of section 23 of this Act.

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Amendments (Textual)

51 Obscene material.S

(1)Subject to subsection (4) below, any person who displays any obscene material in any public place or in any other place where it can be seen by the public shall be guilty of an offence under this section.

(2)Subject to subsection (4) below, any person who publishes, sells or distributes or, with a view to its eventual sale or distribution, makes, prints, has or keeps any obscene material shall be guilty of an offence under this section.

[F158(2A)Subject to subsection (4) below, any person who—

(a)is responsible for the inclusion of any obscene material in a programme included in a programme service; or

(b)with a view to its eventual inclusion in a programme so included, makes, prints, has or keeps any obscene material,

shall be guilty of an offence under this section.]

[F159(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding the statutory maximum or to both, or

(b)on conviction on indictment—

(i)in a case where the obscene material is or includes an extreme pornographic image, to imprisonment for a period not exceeding 5 years or to a fine or to both, or

(ii)in any other case, to imprisonment for a period not exceeding 3 years or to a fine or to both.]

(4)A person shall not be convicted of an offence under this section if he proves that he had used all due diligence to avoid committing the offence.

(5)Under an indictment for or on a complaint of a breach of subsection (1) above, the court may, if satisfied that the person accused is guilty of an offence under section 1(1) of the M16Indecent Displays (Control) Act 1981 (offence of public display of indecent matter), convict him of a breach of the said section 1(1).

(6)Nothing in this section applies in relation to any matter—

(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F160

(b)included in a performance of a play (within the meaning of the M17Theatres Act 1968).

(7)For section 5(4)(b) of the Indecent Displays (Control) Act 1981 (saving) there shall be substituted the following—

(b)section 51 of the Civic Government (Scotland) Act 1982.

(8)In this section—

  • [F161extreme pornographic image” is to be construed in accordance with section 51A;]

  • material” includes any book, magazine, bill, paper, print, film, tape, disc or other kind of recording (whether of sound or visual images or both), photograph, drawing, painting, representation, model or figure . . . F162;

  • photograph” includes the negative as well as the positive version;

  • public place” has the same meaning as in section 133 of this Act except that it includes any place to which at the material time the public are permitted to have access, whether on payment or otherwise;

  • F163...

  • [F164programme” and “programme service” have the same meaning as in the Broadcasting Act 1990;]

and the reference to publishing includes a reference to . . . F165 playing, projecting or otherwise reproducing [F166, or, where the material is data stored electronically, transmitting that data].

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Amendments (Textual)

F166Words in s. 51(8) inserted (3.2.1995) by 1994 c. 33, s. 168(1), Sch. 9 para. 20; S.I. 1995/127, art. 2

Modifications etc. (not altering text)

C15The text of ss. 16, 18(11), 51(7) and 52(6) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Marginal Citations

[F16751AExtreme pornographyS

(1)A person who is in possession of an extreme pornographic image is guilty of an offence under this section.

(2)An extreme pornographic image is an image which is all of the following—

(a)obscene,

(b)pornographic,

(c)extreme.

(3)An image is pornographic if it is of such a nature that it must reasonably be assumed to have been made solely or principally for the purpose of sexual arousal.

(4)Where (as found in the person's possession) an image forms part of a series of images, the question of whether the image is pornographic is to be determined by reference to—

(a)the image itself, and

(b)where the series of images is such as to be capable of providing a context for the image, its context within the series of images,

and reference may also be had to any sounds accompanying the image or the series of images.

(5)So, for example, where—

(a)an image forms an integral part of a narrative constituted by a series of images, and

(b)having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been made solely or principally for the purpose of sexual arousal,

the image may, by virtue of being part of that narrative, be found not to be pornographic (even if it may have been found to be pornographic where taken by itself).

(6)An image is extreme if it depicts, in an explicit and realistic way any of the following—

(a)an act which takes or threatens a person's life,

(b)an act which results, or is likely to result, in a person's severe injury,

(c)rape or other non-consensual penetrative sexual activity,

(d)sexual activity involving (directly or indirectly) a human corpse,

(e)an act which involves sexual activity between a person and an animal (or the carcase of an animal).

(7)In determining whether (as found in the person's possession) an image depicts an act mentioned in subsection (6), reference may be had to—

(a)how the image is or was described (whether the description is part of the image itself or otherwise),

(b)any sounds accompanying the image,

(c)where the image forms an integral part of a narrative constituted by a series of images—

(i)any sounds accompanying the series of images,

(ii)the context provided by that narrative.

(8)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding the statutory maximum or to both,

(b)on conviction on indictment, to imprisonment for a period not exceeding 3 years or to a fine or to both.

(9)In this section, an “image” is—

(a)a moving or still image (made by any means), or

(b)data (stored by any means) which is capable of conversion into such an image.

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Amendments (Textual)

51BExtreme pornography: excluded imagesS

(1)An offence is not committed under section 51A if the image is an excluded image.

(2)An “excluded image” is an image which is all or part of a classified work.

(3)An image is not an excluded image where—

(a)it has been extracted from a classified work, and

(b)it must be reasonably be assumed to have been extracted (whether with or without other images) from the work solely or principally for the purpose of sexual arousal.

(4)In determining whether (as found in the person's possession) the image was extracted from the work for the purpose mentioned in subsection (3)(b), reference may be had to—

(a)how the image was stored,

(b)how the image is or was described (whether the description is part of the image itself or otherwise),

(c)any sounds accompanying the image,

(d)where the image forms an integral part of a narrative constituted by a series of images—

(i)any sounds accompanying the series of images,

(ii)the context provided by that narrative.

(5)In this section—

  • classified work” means a video work in respect of which a classification certificate has been issued by a designated authority,

  • classification certificate” and “video work” have the same meanings as in the Video Recordings Act 1984 (c.39),

  • designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act,

  • extract” includes an extract of a single image,

  • image” is to be construed in accordance with section 51A.

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Amendments (Textual)

51CExtreme pornography: defencesS

(1)Where a person (“A”) is charged with an offence under section 51A, it is a defence for A to prove one or more of the matters mentioned in subsection (2).

(2)The matters are—

(a)that A had a legitimate reason for being in possession of the image concerned,

(b)that A had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image,

(c)that A—

(i)was sent the image concerned without any prior request having been made by or on behalf of A, and

(ii)did not keep it for an unreasonable time.

(3)Where A is charged with an offence under section 51A, it is a defence for A to prove that—

(a)A directly participated in the act depicted, and

(b)subsection (4) applies.

(4)This subsection applies—

(a)in the case of an image which depicts an act described in subsection (6)(a) of that section, if the act depicted did not actually take or threaten a person's life,

(b)in the case of an image which depicts an act described in subsection (6)(b) of that section, if the act depicted did not actually result in (nor was it actually likely to result in) a person's severe injury,

(c)in the case of an image which depicts an act described in subsection (6)(c) of that section, if the act depicted did not actually involve non-consensual activity,

(d)in the case of an image which depicts an act described in subsection (6)(d) of that section, if what is depicted as a human corpse was not in fact a corpse,

(e)in the case of an image which depicts an act described in subsection (6)(e) of that section, if what is depicted as an animal (or the carcase of an animal) was not in fact an animal (or a carcase).

(5)The defence under subsection (3) is not available if A shows, gives or offers for sale the image to any person who was not also a direct participant in the act depicted.

(6)In this section “image” and “extreme pornographic image” are to be construed in accordance with section 51A.]

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Amendments (Textual)

52 Indecent photographs etc. of children.S

(1)Any person who—

(a)takes, or permits to be taken [F168or makes], any indecent photograph [F169or pseudo-photograph of a child]

(b)distributes or shows such an indecent photograph [F170or pseudo-photograph];

(c)has in his possession such an indecent photograph [F170or pseudo-photograph]with a view to its being distributed or shown by himself or others: or

(d)publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph [F170or pseudo-photograph], or intends to do so

shall be guilty of an offence under this section.

(2)[F171In subsection (1) above “child” means, subject to subsection (2B) below, a person under the age of [F17218]; and] in proceedings under this section a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of [F17218].

[F173(2A)In this section, “pseudo-photograph” means an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph.

(2B)If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(2C)In this section, references to an indecent pseudo-photograph include—

(a)a copy of an indecent pseudo-photograph;

(b)data stored on a computer disc or by other electronic means which is capable of conversion into [F174an indecent pseudo-photograph] .]

(3)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a period not exceeding [F1756 months] or to a fine not exceeding the prescribed sum within the meaning of [F176section 225(8) of the Criminal Procedure (Scotland) Act 1995] (at the passing of this Act £1,000) or to both;

(b)on conviction on indictment, to imprisonment for a period not exceeding [F177[F17810 years]] or to a fine or to both.

(4)For the purposes of this section, a person is to be regarded as distributing an indecent photograph [F179 or pseudo-photograph] if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(5)Where a person is charged with an offfence under subsection (1)(b) or (c) above, it shall be a defence for him to prove—

(a)that he had a legitimate reason for distributing or showing the photograph [F179 or pseudo-photograph] or (as the case may be) having it in his possession; or

(b)that he had not himself seen the photograph [F179or pseudo-photograph] and did not know, nor had any cause to suspect, it to be indecent.

(6)In paragraph 2 of the Schedule to the M18 Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to be tried by a United Kingdom court) the word “ and” immediately preceding sub-paragraph (b)(iii) shall be omitted and after the said sub-paragraph (b)(iii) there shall be added—

(iv)section 52(1)(a) of the Civic Government (Scotland) Act 1982.

F180(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In this section—

(a)references to an indecent photograph include an indecent film, a copy of an indecent photograph or film and an indecent photograph comprised in a film;

(b)a photograph (including one comprised in a film) shall, if it shows a child and is indecent, be treated for all purposes of this section as an indecent photograph of a child;

[F181(c)references to a photograph include—

(i)the negative as well as the positive version; and

(ii)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.]

(d)film” includes any form of video-recording.

[F182(9)In this section, references to a photograph also include a tracing or other image, whether made by electronic or other means (of whatever nature), which is not itself a photograph or pseudo-photograph but which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both).

(10)And subsection (2B) applies in relation to such an image as it applies in relation to a pseudo-photograph.]

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Amendments (Textual)

F168Words in s. 52(1)(a) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(a)(i) (with Sch. 9 para. 17)

F169Words in s. 52(1)(a) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(a)(ii) (with Sch. 9 para. 17

F170Words in s. 52(1)(b)(c)(d) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(b); S.I. 1995/127, art. 2(1), Sch. 1

F171Words in s. 52(2) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(c); S.I. 1995/127, art. 2(1), Sch. 1

F173S. 52(2A)-(2C) added (3.2.1995) by 1994 c. 33, s. 84(6)(d); S.I. 1995/127, art. 2(1), Sch. 1

F175Words in s. 52(3)(a) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(e)(i); S.I. 1995/127, art. 2(1), Sch. 1

F176Words in s. 52(3) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 44(3)

F177Words in s. 52(3)(b) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(e)(ii); S.I. 1995/127, art. 2(1), Sch. 1

F179Words in s. 52(4)(5)(a)(b) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(f); S.I. 1995/127, art. 2(1), Sch. 1

F181S. 52(8)(c) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(g); S.I. 1995/127, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C17The text of ss. 16, 18(11), 51(7) and 52(6) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Marginal Citations

[F18352A Possession of indecent photographs of children.S

(1)It is an offence for a person to have any indecent photograph [F184or pseudo-photograph of a child] in his possession.

(2)Where a person is charged with an offence under subsection (1), it shall be a defence for him to prove—

(a)that he had a legitimate reason for having the photograph [F185or pseudo-photograph] in his possession; or

(b)that he had not himself seen the photograph [F185or pseudo-photograph] and did not know, nor had any cause to suspect, it to be indecent; or

(c)that the photograph [F185or pseudo-photograph] was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

(3)A person shall be liable

[F186(a)]on summary conviction of an offence under this section to [F187imprisonment for a period not exceeding 6 months or to]a fine not exceeding level 5 on the standard scale [F188“or to both.”].

[F189(b)on conviction on indictment of such an offence to imprisonment for a period not exceeding 5 years or to a fine or to both.]

(4)Subsections (2) [F190to (2C)] [F191and (8) to (10)] of section 52 of this Act shall have effect for the purposes of this section as they have for the purposes of that section.]

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Amendments (Textual)

F184Words in s. 52A(1) substituted (3.2.1995) by 1994 c. 33, s. 84(7); S.I. 1995/127, art. 2(1), Sch. 1

F185words in s. 52A(2)(a)-(c) inserted (3.2.1995) by 1994 c. 33, s. 84(7)(b); S.I. 1995/127, art. 2(1), Sch. 1

F186Words in s. 52A(3) renumbered as s. 52A(3)(a) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 19(1)(b), 89(2); S.S.I. 2003/288, art. 2, sch.

F187Words in s. 52A(3) inserted (3.2.1995) by 1994 c. 33, s. 84(7)(c)(i); S.I. 1995/127, art. 2(1), Sch. 1

F188Words in s. 52A(3) added (3.2.1995) by 1994 c. 33, s. 84(7)(c)(ii); S.I. 1995/127, art. 2(1), Sch. 1

F190Words in s. 52A(4) inserted (3.2.1995) by 1994 c. 33, s. 84(7)(d); S.I. 1995/127, art. 2(1), Sch. 1

[F19252BSections 52 and 52A: exceptions for photographs of 16 and 17 year oldsS

(1)If subsection (2) below applies, the accused is not guilty of an offence under section 52(1)(a) of this Act of taking or making an indecent photograph of a child.

(2)This subsection applies if—

(a)either—

(i)the photograph was of the child aged 16 or over; or

(ii)the accused reasonably believed that to be so;

(b)at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i)married to or civil partners of each other; or

(ii)partners in an established relationship; and

(c)either—

(i)the child consented to the photograph being taken or made; or

(ii)the accused reasonably believed that to be so.

(3)If subsection (4) below applies, the accused is not guilty of an offence under section 52(1)(b) of this Act relating to an indecent photograph of a child.

(4)This subsection applies if—

(a)either—

(i)the photograph was of the child aged 16 or over; or

(ii)the accused reasonably believed that to be so;

(b)at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i)married to or civil partners of each other; or

(ii)partners in an established relationship;

(c)either—

(i)the child consented to the photograph's being taken or made; or

(ii)the accused reasonably believed that to be so; and

(d)the showing or distributing of the photograph was only to the child.

(5)If subsection (6) below applies, the accused is not guilty of an offence under section 52(1)(c) of this Act relating to an indecent photograph of a child.

(6)This subsection applies if—

(a)either—

(i)the photograph was of the child aged 16 or over; or

(ii)the accused reasonably believed that to be so;

(b)at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i)married to or civil partners of each other; or

(ii)partners in an established relationship;

(c)either—

(i)the child consented to the photograph's being in the accused's possession; or

(ii)the accused reasonably believed that to be so; and

(d)the accused had the photograph in his possession with a view to its being distributed or shown only to the child.

(7)If subsection (8) below applies, the accused is not guilty of an offence under section 52A of this Act relating to an indecent photograph of a child.

(8)This subsection applies if—

(a)either—

(i)the photograph was of the child aged 16 or over; or

(ii)the accused reasonably believed that to be so;

(b)at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i)married to or civil partners of each other; or

(ii)partners in an established relationship; and

(c)either—

(i)the child consented to the photograph's being in the accused's possession; or

(ii)the accused reasonably believed that to be so.

(9)Subsections (2), (4), (6) and (8) above apply whether the photograph showed the child alone or with the accused, but not if it showed any other person.

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Amendments (Textual)

52CSection 52B: proof of exceptionsS

(1)This section applies for the purpose of determining whether a matter within a paragraph of section 52B(2), (4), (6) or (8) of this Act is the case.

(2)If sufficient evidence is adduced to raise an issue as to whether the matter is the case, it shall be held to be the case, except where subsection (3) below applies.

(3)This subsection applies where the prosecution proves beyond reasonable doubt that the matter is not the case.

(4)Otherwise, the matter shall be held not to be the case.]

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Amendments (Textual)

53 Obstruction by pedestrians.S

Any person who, being on foot in any public place—

(a)obstructs, along with another or others, the lawful passage of any other person and fails to desist on being required to do so by a constable in uniform, or

(b)wilfully obstructs the lawful passage of any other person

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F193level 2 on the standard scale].

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Amendments (Textual)

54 Playing instruments, singing, playing radios, etc.S

(1)Any person who—

(a)sounds or plays any musical instrument;

(b)sings or performs; or

(c)operates any radio or television receiver, record player, tape-recorder or other sound producing device

so as to give any other person reasonable cause for annoyance and fails to desist on being required to do so by a constable in uniform, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £50.

(2)This section is without prejudice to any offence under section 62 of the M19Control of Pollution Act 1974 (operation of loudspeakers in streets).

[F194(2A)Where a constable reasonably suspects that an offence under subsection (1) above has been committed in relation to a musical instrument or in relation to such a device as is mentioned in paragraph (c) of that subsection, he may enter any premises on which he reasonably suspects that instrument or device to be and seize any such instrument or device he finds there.

(2B)A constable may use reasonable force in the exercise of the power conferred by subsection (2A) above.

(2C)Schedule 2A to this Act (which makes provision in relation to the retention and disposal of property seized under subsection (2A) above) shall have effect.]

(3)Subsection (1) above shall not apply to the operation of a loudspeaker—

(a)for police, [F195fire-fighting] or ambulance purposes, by [F196Scottish Water] in the exercise of any of its functions, or by a local authority within its area;

(b)for communicating with persons on a vessel for the purpose of directing the movement of that or any other vessel;

(c)if the loudspeaker forms part of a public telephone system;

(d)if the loudspeaker—

(i)is in or fixed to a vehicle, and

(ii)is operated solely for the entertainment of or for communicating with the driver or a passenger of the vehicle or, where the loudspeaker is or forms part of the horn or similar warning instrument of the vehicle, solely for giving warning to other traffic, and

(iii)is so operated as not to give reasonable cause for annoyance to persons in the vicinity;

(e)otherwise than on a [F197road], by persons employed in connection with a transport undertaking used by the public in a case where the loudspeaker is operated solely for making announcements to passengers or prospective passengers or to other persons so employed;

(f)by a travelling showman on land which is being used for the purposes of a pleasure fair;

(g)in case of emergency.

F198. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F199(4)In subsection (3)(a), the reference to fire-fighting purposes is a reference to—

(a)the purposes of [F200the Scottish Fire and Rescue Service] ; or

(b)fire-fighting functions of any other employer of fire-fighters.]

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Amendments (Textual)

F194S. 54(2A)-(2C) inserted (1.12.1998) by 1998 c. 37, s. 24(2); S.I. 1998/2327, art. 2(1)

F195Words in s. 54(3)(a) substituted (2.8.2005) by Fire (Scotland) Act 2005 (asp 5), s. 90, sch. 3 para. 11(a) (with s. 77); S.S.I. 2005/392, art. 2(k)

F196Words in s. 54(3)(a) substituted (1.4.2002) by Water Industry (Scotland) Act 2002 (asp 3), s. 71(2), Sch. 7 para. 13(a), (with s. 67); S.S.I. 2002/118, art. 2

F198Words in s. 54(3) repealed (1.4.2002) by Water Industry (Scotland) Act 2002 (asp 3), s. 71(2), Sch. 7 para. 13(b), (with s. 67); S.S.I. 2002/118, art. 2

F200Words in s. 54(4)(a) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 53(2); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Marginal Citations

55 Touting.S

(1)Any person who—

(a)in a public place—

(i)touts for the purpose of selling or advertising anything or otherwise obtaining custom so as to give any other person reasonable cause for annoyance; or

(ii)importunes any other person for that purpose so as to give that, or any other, person reasonable cause for annoyance; and

(b)fails to desist when required to do so by a constable in uniform,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F201level 2 on the standard scale].

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Amendments (Textual)

56 Fires.S

Any person who lays or lights a fire in a public place so as to endanger any other person or give him reasonable cause for alarm or annoyance or so as to endanger any property shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F202level 3 on the standard scale].

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Amendments (Textual)

Preventive offencesS

57 Being in or on building etc. with intent to commit theft.S

(1)Any person who, without lawful authority to be there, is found in or on a building or other premises, whether enclosed or not, or in its curtilage or in a vehicle or vessel so that, in all the circumstances, it may reasonably be inferred that he intended to commit theft there shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F203level 4 on the standard scale] or to imprisonment for a period not exceeding 3 months or to both.

(2)In this section “theft” includes any aggravation of theft including robbery.

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Amendments (Textual)

58 Convicted thief in possession.S

(1)Any person who, being a person to whom this section applies—

(a)has or has recently had in his possession any tool or other object from the possession of which it may reasonably be inferred that he intended to commit theft or has committed theft; and

(b)is unable to demonstrate satisfactorily that his possession of such tool or other object is or was not for the purposes of committing theft

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F204level 4 on the standard scale] or to imprisonment for a period not exceeding 3 months or to both.

(2)For the purposes of subsection (1) above, a person shall have recently had possession of a tool or other object if he had possession of it within 14 days before the date of—

(a)his arrest without warrant for the offence of having so possessed it in contravention of subsection (1) above; or

(b)the issue of a warrant for his arrest for that offence; or

(c)if earlier, the service upon him of the first complaint alleging that he has committed that offence.

(3)Where a court convicts a person of an offence under this section or discharges him absolutely F205... in respect of such an offence it may order the forfeiture of any tool or other object in respect of the possession of which he was convicted or [F206, as the case may be, discharged absolutely.].

(4)This section applies to a person who has two or more convictions for theft which are not, for the purposes of the M20Rehabilitation of Offenders Act 1974, spent convictions.

[F207(4A)In subsection (4), the reference to a conviction for theft includes a reference to a conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to theft.

(4B)Any issue of equivalence arising in pursuance of subsection (4A) is for the court to determine.]

(5)In this section “theft” includes any aggravation of theft including robbery.

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Amendments (Textual)

Marginal Citations

Powers of constables etc.S

59 Powers of arrest and apprehension.S

F208(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F208(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The owner, tenant or occupier of any property in, upon, or in respect of, which an offence to which this section applies is being committed or any person authorised by him may apprehend any person whom the owner or, as the case may be, the tenant, occupier or authorised person finds committing that offence and detain the apprehended person until [F209the arrival] of a constable.

In this subsection “property” means heritable or moveable property.

(4)This section applies to offences under sections 50, 57 and 58 of this Act.

F210(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

60 Powers of search and seizure.S

(1)Subject to subsection (2) and (3) below, if a constable has reasonable grounds to suspect that a person is in possession of any stolen property, the constable may without warrant—

(a)search that person or anything in his possession, and detain him for as long as is necessary for the purpose of that search;

(b)enter and search any vehicle or vessel in which the constable suspects that that thing may be found, and for that purpose require the person in control of the vehicle or vessel to stop it and keep it stopped;

(c)enter and search any premises occupied by a second-hand dealer or a metal dealer for the purposes of his business;

(d)seize and detain anything found in the course of any such search which appears to the constable to have been stolen or to be evidence of the commission of the crime of theft

and may, in doing so, use reasonable force.

In this subsection “second-hand dealer” and “metal dealer” have the meanings respectively assigned to them by sections 24(2) and 37(1) of this Act.

(2)The power under subsection (1)(b) above to require the person in charge of a vehicle or vessel to stop it shall be exercisable only by a constable in uniform.

(3)A constable who is not in uniform shall not be entitled to exercise the powers which he may exercise under subsection (1)(a) to (c) above until he has produced his identification—

(a)in relation to the exercise of powers under subsection (1)(a) above, to the person in respect of whom the powers are exercised;

(b)in relation to the exercise of powers under subsections (1)(b) or (c) above, to the person for the time being in charge of the vehicle, vessel or premises and to any other person in or on the vehicle, vessel or premises who, having reasonable cause to do so, requests to see it.

(4)In subsection (1) above “theft” includes any aggravation of theft including robbery.

(5)Nothing in [F211section 54(2A) of this Act or] this section prejudices any power of entry or search or any power to seize or detain property or any power to require any vehicle or vessel to be stopped [F212which is otherwise exercisable by a constable].

(6)Any person who, without reasonable excuse—

(a)fails to allow a constable [F213to enter and search—,

(i)any premises in pursuance of section 54(2A) of this Act or of subsection (1) above; or

(ii)any vehicle or vessel in pursuance of the said subsection (1)], or seize and detain anything found in the course of such searsh;

(b)when required by a constable in pursuance of subsection (1) above to stop a vehicle or vessel and keep it stopped, fails to do so; or

(c)obstructs a constable in the exercise of his powers under [F214section 54(2A) of this Act or]subsection (1) above;

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F215level 3 on the standard scale].

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Amendments (Textual)

F211Words in s. 60(5) inserted (1.12.1998) by 1998 c. 37, s. 24(3)(a)(i); S.I. 1998/2327, art. 2(1)

F212Words in s. 60(5) substituted (1.12.1998) by 1998 c. 37, s. 24(3)(a)(ii); S.I. 1998/2327, art. 2(1)

F213Words and s. 60(6)(a)(i)(ii) substituted for words in s. 60(6)(a) substituted (1.12.1998) by 1998 c. 37, s. 24(3)(b)(i); S.I. 1998/2327, art. 2(1)

F214Words in s. 60(6)(c) inserted (1.12.1998) by 1998 c. 37, s. 24(3)(b)(ii); S.I. 1998/2327, art. 2(1)

61 Protection of insecure premises.S

(1)Where—

(a)any premises have been left open, unlocked or otherwise insecure; and

(b)in the opinion of a constable, the insecurity of the premises is likely to conduce to the commission of an offence,

the constable may take such reasonable steps as he may consider necessary to make the premises secure.

(2)Any reasonable expense incurred by a constable in making any premises secure under subsection (1) above may be recovered by the [F216Scottish Police Authority] from the occupier (or, where there is no occupier, from the tenant or, where there is no occupier or tenant, from the owner) of the premises.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F216Words in s. 61(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 6(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Part VS Public Processions

62 Notification of processions.S

(1)A person proposing to hold a procession in public shall give written notice of that proposal in accordance with subsections (2) and (3) below

[F217(a)]to the [F218local authority] in whose area the procession is to be held, or if it is to be held in the areas of more than one such [F218 authority], to each such [F218authority][F219;

[F220(aa)if the procession is to be held to any extent in a National Park, to the National Park authority for the National Park;]

and

F219(b)to the chief constable.]

(2)Notice shall be given for the purposes of subsection (1) above by—

(a)its being posted to the main office of the [F218local authority][F221and (where subsection (1)(aa) above applies) of the National Park authority][F222and to the office of the chief constable] so that in the normal course of post it might be expected to arrive not later than [F22328] days before the date when the procession is to be held; or

(b)its being delivered by hand to [F224those offices] not later than [F22528] days before that date.

(3)The notice to be given under subsection (1) above shall specify—

(a)the date and time when the procession is to be held;

(b)its route;

(c)the number of persons likely to take part in it;

(d)the arrangements for its control being made by the person proposing to hold it; and

(e)the name and address of that person.

(4)A [F218local authority]may, on application in accordance with subsection (5) below by a person proposing to hold a procession in public in their area

[F226(a)] made to them [F227;

[F228(aa)if the procession is to be held to any extent in a National Park, intimated to the National Park authority for the National Park;]

and

F227(b)intimated to the chief constable,] within the period of [F22928] days before the date when the procession is to be held, make an order dispensing with the requirements of subsection (2) above in relation to the time limits for the giving of notice of that proposal.

(5)An application under subsection (4) above shall

[F230(a)set out the reason why notice of the proposal was not given in accordance with subsections (1) and (2) above

(b)specify the matters mentioned in subsection (3) above,]

F231(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F232(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F233(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The [F218local authority] shall, before making an order under subsection (4) above F234..., consult the chief constable.

(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F235

F236(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F237(11A)A local authority shall, as soon as possible after making an order under subsection (4) above, publicise that fact in such manner as they think fit and send a copy of the order to the applicant.

(11B)This section does not apply to a procession—

(a)which is a funeral procession organised by a funeral director acting in the ordinary course of his business; or

(b)which is specified in, or is within a description specified in, an order made by the Scottish Ministers.

(11C)In subsection (11B) above, a “funeral director” is a person whose business consists of or includes the arrangement and conduct of funerals.

(11D)An order made for the purposes of subsection (11B)(b) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.]

(12)In this section and in sections 63 to 65 of this Act—

  • procession in public” means a procession in a public place;

  • [F238chief constable” means the chief constable of the Police Service of Scotland; and]

  • public place” has the same meaning as in [F239Part II of the Public Order Act 1986].

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F218Words in s 62(1)(2)(4)(6)(7)(9)(11)(12) substituted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 129(4)(a)-(d); S.I. 1996/323, art. 4(1)(c)

F219S. 62(1)(b) and “; and” immediately preceding it inserted by Public Order Act 1986 (c. 64, SIF 39:2), s. 40(2)(4)(5), Sch. 2 para. 3(2)(a)(ii)

F220S. 62(1)(aa) inserted (8.9.2000) by 2000 asp 10, s. 36, Sch. 5 para. 9(1)(a) (with s. 32); S.S.I. 2000/312, art. 2

F221Words in s. 62(2)(a) inserted (8.9.2000) by 2000 asp 10, s. 36, Sch. 5 para. 9(1)(b) (with s. 32); S.S.I. 2000/312, art. 2

F227S. 62(4)(b) and “; and” immediately preceding it inserted by Public Order Act 1986 (c. 64, SIF 39:2), s. 40(2)(4)(5), Sch. 2 para. 3(2)(c)(ii)

F228S. 62(4)(aa) inserted (8.9.2000) by 2000 asp 10, s. 36, Sch. 5 para. 9(1)(c) (with s. 32); S.S.I. 2000/312, art. 2

F238Words in s. 62(12) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 6(4); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F239Words substituted by Public Order Act 1986 (c. 64, SIF 39:2), s. 40 (2)(4)(5), Sch. 2 para. 3(2)(d)

63 Functions of regional and islands councils in relation to processions.S

(1)The [F240local authority] may, after consulting the chief constable [F241and (where section 62(1)(aa) of this Act applies) the National Park authority] in respect of a procession notice of which has been given or falls to be treated as having been given in accordance with section 62(1) of this Act, make an order—

(i)prohibiting the holding of the procession; or

(ii)imposing conditions on the holding of it.

[F242(1A)Where notice of a proposal to hold a procession has been given or falls to be treated as having been given in accordance with section 62(1) of this Act—

(a)if a [F240local authority]have made an order under subsection (1) above they may at any time thereafter, after consulting the chief constable [F243and (where subsection (1)(aa) of that section applies) the National Park authority], vary or revoke the order and, where they revoke it, make any order which they were empowered to make under that subsection;

(b)if they have decided not to make an order they may at any time thereafter, after consulting the chief constable [F243and (where subsection (1)(aa) of that scetion applies) the National Park authority], make any order which they were empowered to make under that subsection.]

F244(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)A [F240local authority] shall—

(a)where notice of a proposal to hold a procession has been given or falls to be treated as having been given in accordance with section 62(1) of this Act, deliver at least 2 days before the date when, in terms of the notice, the procession is to be held, to the person who gave the notice—

(i)where they have made an order under subsection (1) [F245or (1A)] above, a copy of it and a written statement of the reasons for it; . . . F246

(ii)where they decide not to make [F247an order under subsection (1) above or to revoke an order already made under subsection (1) or (1A) above], notification of that fact;

[F248(iii)where they have, under subsection (1A) above, varied such an order, a copy of the order as varied and a written statement of the reasons for the variation; and]

(b)where they have made an order under subsection (1) [F249or (1A)] above in relation to a proposal to hold a procession, make such arrangements as will ensure that persons who might take or are taking part in that procession are made aware of the fact that the order has been made [F249and, if the order has been varied under subsection (1A) above, that it has been so varied] and of its effect [F250; and

(c)where they have revoked an order made under subsection (1) or (1A) above in relation to a proposal to hold a procession, make such arrangements as will ensure that persons who might take or are taking part in that procession are made aware of the fact that the order has been revoked.]

(4)The [F240local authority]shall comply with subsection (3) above—

(a)as early as possible;

(b)only insofar as it is reasonably practicable for them to do so.

[F251(5)The local authority may, after consulting the chief constable and (where section 62(1)(aa) of this Act applies) the National Parks Authority, make an order—

(a)imposing conditions on the holding of a procession to which paragraph (a) of subsection (11B) of section 62 of this Act relates;

(b)prohibiting or imposing conditions on the holding of a procession to which paragraph (b) of that subsection relates.

(6)Subsections (1A), (3) and (4) above apply in relation to an order made under subsection (5) above and to a decision not to make an order under that subsection as they apply to an order under subsection (1) above and to a decision not to make an order under that subsection respectively, but with the modifications set out in subsection (7) below.

(7)Those modifications are—