Council ordered to pay Tesco’s legal fees after overturned booze ban ruling

• Two-day ban on selling alcohol had been imposed on Tesco store in Dalkeith after a test purchase where a 16-year-old was able to buy two bottles of beer

• Overturning of ruling criticised as “ridiculous”

The two-day ban at Tesco’s Hardengreen store in Dalkeith, imposed by Midlothian Licensing Board, has been overturned by the courts, with the board ordered to pay the supermarket giant’s costs.

The ban was due to start at midnight on December 15 last year, but an 11th-hour challenge saw alcohol sales resume at 3pm the following day.

Had the licensing board’s decision been upheld, Tesco would have been made to serve the remainder of the ban.

Councillor Adam Montgomery, a member of the board, said: “This is big business getting away with something that a small retailer would never be able to. It’s ridiculous and I’m really quite angry about it.”

The licensing board hearing was held at the request of Lothian and Borders Police after the store failed a single test purchase on July 21 when a 16-year-old youth purchased two bottles of beer.

At Edinburgh Sheriff Court, Sheriff Principal Mhairi Stephen said there was “no proper basis” for suspending the licence to “protect children from harm”.

The law defines a child as a person under the age of 16 and a young person as aged 16 or 17.

“On the contrary, there was evidence that a follow-up test purchase was met with an appropriate challenge and refusal and there was evidence of other test purchases organised by the pursuers themselves, which had been passed,” she said.

“Accordingly, there is no evidence to support the conclusion that the licensing objective of protecting children from harm had been engaged.”

She added: “There is nothing in the reasons given by the board to explain how the public interest might be served by a short suspension of the licence.”

Hitting back at the decision, Cllr Montgomery said: “Is there any point in carrying out a test purchase when big firms can get away with failing it?

“Tesco sold alcohol to an underage person, there’s no getting away from it.”

Alcohol Focus Scotland said it had recommended that Ministers should consider changing the objective related to protecting children from harm to include young people.

Dr Jonathan Chick, an alcohol expert and honorary professor at Queen Margaret University, said: “Tesco have a responsibility to follow the law – they have failed to follow the law on this occasion.”

A Tesco spokesman said: “We are a responsible retailer of alcohol, and are pleased that the appeal was successful.”