PUNITIVE DRIFT IN SCOTLAND
The procedural bleed and the subversion of justice
When we allow local licence conditions to duplicate criminal offences, we invite a dangerous procedural bleed that fundamentally alters the landscape of enforcement. This creates three immediate structural hazards.
l A misallocation of investigative powers where we end up with council enforcement officers being tasked with investigating criminality. This risks blurring the respective roles of licensing enforcement and criminal enforcement.
On a superficial level, this looks like standard regulatory housekeeping. However,
that raises a more
fundamental question about the legal foundation of the condition. Conduct involving the unlawful operation of taxis or the picking up of passengers by private hire cars is already addressed through offences in section 21 of the 1982 Act, yet local authorities may also impose conditions regulating that same conduct.
By drafting a local licence condition that directly mirrors a statutory offence created by primary legislation, authorities risk creating a parallel enforcement route which can blur the boundary between regulatory action and criminal punishment.
When a single complaint of plying for hire is brought to committee, there is a risk that councillors are placed in the same retrospective posture criticised in Lidl and Nelson. Instead of being asked to address an ongoing licensing risk, they may effectively be asked to determine what happened in the past and impose a consequence for it.
None of this means that criminal conduct is irrelevant to licensing. A licensing committee is plainly entitled to consider conduct which may also constitute an offence when assessing whether a person remains fit and proper. The question is what the committee is doing with that information. Is it using the conduct to assess an ongoing licensing risk, or is it using the licensing process to punish the conduct itself?
The important question, therefore, is not simply whether a licence condition overlaps with a statutory offence. It is how that condition is then used. A licensing condition cannot transform a licensing committee into a criminal court, and the existence of a regulatory condition does not remove the need for a committee to identify a genuine licensing purpose for any action it takes.
PHTM OCTOBER 2026
lThe evidential position is also fundamentally different. A criminal prosecution requires the Crown to establish guilt to the criminal standard. A licensing committee deciding whether a licence should be suspended is operating within an administrative framework and does not determine criminal guilt. The danger arises when the committee effectively treats the licensing process as a substitute for prosecution, reaching a conclusion about alleged criminal conduct and imposing a livelihood-threatening consequence without first asking what regulatory risk remains.
l Lastly, in extreme cases, the different evidential framework can allow serious consequences to follow from allegations which have never been tested through the criminal justice process.
Restoring the boundaries
When a committee suspends a licence without attaching a corrective, forward-looking pathway, the result is punishment. When licensing authorities draft conditions that replicate statutory offences, they create an additional enforcement route which can facilitate that punitive drift if it is used without a genuine regulatory purpose. That also risks encouraging committees to act as though they were makeshift criminal courts. It is therefore important that we critically assess these overlapping enforcement routes.
Civic licensing needs to return exclusively to its administrative, preventative roots. Not simply as an exercise of regulatory hygiene, but to preserve the proper boundary between civic regulation and criminal justice, ensuring that the trade is regulated through the statutory licensing framework rather than through administrative punishment which properly belongs to the criminal justice system.
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