Commentary on Sections Section 3 – Aggravation in relation to enforcement of age restriction
13.Under section 3, an offence under section 1 can become an aggravated offence if the assault, threat or abuse occurred because the retail worker was enforcing a statutory age restriction (subsection (2)). In order to establish that the offence is so aggravated, the prosecutor must specify the aggravation in the complaint (that is, the document that sets out what the accused person is charged with) and prove it in court (for which evidence from a single source is sufficient) (subsections (1) and (3)).
14.If the accused is convicted of the aggravated offence, it must be stated in court and recorded that it was so aggravated, and the aggravation must be taken into account in sentencing. This may, but need not, increase the penalty imposed; and the court must state the extent of any difference in penalty and the reason for it, or that there is no difference and the reason for that (subsection (4)).
15.Section 3(5) defines “enforcement” of a statutory age restriction broadly, covering all the steps that a retail worker would be expected to take to establish whether a customer is above the relevant age limit. This means (for example) that in proceedings for assault on a retail worker, it would be possible to demonstrate aggravation of the offence not just where the assault was triggered by the retail worker refusing to sell alcohol to the customer, but also where the trigger was the initial request to provide proof of age.
16.Section 3(5) also provides a definition for “statutory age restriction”. It is framed so as to include situations where the offence is set out in one enactment and the age specification in another. For example, section 11 of the Fireworks Act 2003 creates the offence of breaching firework regulations but it is the regulations themselves which impose the age restriction on sale. Under the Interpretation and Legislative Reform (Scotland) Act 2010, “enactment” includes any provision of an Act of (the UK) Parliament, an Act of the Scottish Parliament, a statutory instrument (made by or on behalf of a Minister in the UK Government) or a Scottish statutory instrument (made by or on behalf of one of the Scottish Ministers).