LICENSING CASELAWScott Blair, Advocate

Murray Stable

The current Legal 500 entry for Scott says that he has:-

“‘a great depth of knowledge’ in licensing matters, and his work is ‘diligent and timeous’”

INTRODUCTION

First of all, do not be alarmed at the size of this part of the paper! It is not my

intention to go through it all. It represents an ongoing survey of developments in

licensing case law generally and I hope you will find it useful if you get the time to

look over it more fully. If not interesting, then it might still prove useful if you have

difficulty in getting to sleep of an evening!

I will deal with some aspects of appeals procedure and I will also pick out some areas

of substantive law which I think are of particular importance. I will talk to you in

particular about a number of issues which in recent experience have come to the fore

when considering the topic of appeals in liquor licensing. These include refusals

based on inconsistency with licensing objectives secured by Section 4 of the

Licensing (Scotland) Act 2005 and overprovision

As well as looking at some of the few Scottish cases decided so far, I will also look at

some of the recent cases decided in England under the Licensing Act 2003 and will

offer some observations on possible grounds of challenge under the 2005 Act. I will

look at caselaw on civic government licensing under the Civic Government (Scotland)

Act 1982.

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2005 ACT APPEALS

Under the Licensing (Scotland) Act 1976 there were two main avenues of redress.

Where the Act allowed a specific right of appeal (e.g. refusal of grant, refusal of

permanent transfer, suspension etc) - this was to the Sheriff and from there a further

right of appeal to the Court of Session. The procedure in the Sheriff Court was by way

of summary application.

Where no specific right was given in the Act challenge was by means of judicial

review. The most important decision amenable to judicial review was the regular

extension decision. The Licensing (Scotland) Act 2005 changes the appeal

landscape. It makes important changes in respect of the continuation of a licence

pending the appeal. Judicial review may become important in a range of contexts.

It is fair to say that the Stated Case procedure has attracted few supporters. It was the

subject of criticism by Sheriff Powrie in the decision in Shafiq v. North Lanarkshire

Licensing Board [2009] 42 SLLP 24 to which I will come and it has I understand

also been the subject of comment from Sheriff Principal Taylor at Glasgow Sheriff

Court.

In view of those concerns and other comments the Licensing Law Sub-Committee of

the Law Society raised with the relevant Committee of the Scottish Parliament the

possibility of reverting to the old form of Summary Application.

Happily as a result of that intervention there will be a reversion to summary

application procedure. Section 194 of the Criminal Justice and Licensing (Scotland)

Act 2010 deletes the reference to appeal by way of Stated Case. Section 194 came

into effect as at 13 December 2010 as a result of Criminal Justice and Licensing

(Scotland) Act 2010 (Commencement No. 6, Transitional and Savings Provisions)

Order 2010.

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We are back to summary application procedure for decisions made on or after 13

December 2010.

You have 21 days to lodge an appeal with the Sheriff Clerk, the time runs from the

date of decision or if requested the date of any Statement of Reasons.

Beyond that procedure that will apply will be along the lines of the 1999 Act of

Sederunt which governed appeals under the 1976 Act. See now for the new procedure

paragraph 9 of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous

Amendments) (No. 2) 2010 SSI 2010/416.

There are some issues here. Is a late appeal competent? One has 21 days to lodge the

appeal but it is not clear if one can extend that. It would probably depend on the view

as to whether the time limit was mandatory or directory. I also have concerns over

whether a strict deadline would be ECHR Article 6 compliant. The one case to date

suggests, happily, that a late appeal might be competent-Ponton v. Edinburgh

Licensing Board, 31 August 2010, a decision of Sheriff Principal Bowen QC.

Also there is nothing on intimating the appeal on objectors which was commonplace

under the 1976 Act. As the 1999 Act of Sederunt still applies for “default matters”

the Sheriff probably has a discretion on whom the summary application is to be

intimated.

There is no special style of summary application to be used so one should have regard

to existing styles and forms of averment and plea in law which are tried and tested!

Summary procedure is meant to be summary and most appeals will turn on the

Statement of Reasons. Oral evidence will be required but rarely. Usually evidence

arises where there is a dispute on incorrect material fact or allegations of bias (e.g.

what a councillor said at the Board).

Appeals are not a forum for re-running the merits of a case and evidence cannot be

used to improve on the merits of a submission! The grounds of appeal remain error of

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law, unreasonable exercise of discretion, breach of natural justice and incorrect

material fact.

Incorrect material fact does not allow one to re-argue the merits. It is a more limited

exercise.

What is the content of the power to uphold appeal based on incorrect material

fact? Is a mistake as to material fact confined to mistake as to the evidence before the

board? That is if they found X as a fact when no material before them to justify that

finding, that was a mistake as to material fact.

Or is it an error as to a fact which can be shown to be wrong by later incontrovertible

evidence. If two competing versions and Board plump for one that was not true, that

may be an incorrect material fact. The Court of Appeal in England seemed to incline

to this view - see E v. Secretary of State for the Home Department [2004] EWCA

Civ 49. Provided that the later evidence is clearly correct then it can cast light on

whether an earlier decision proceeded on an incorrect material fact.

An example might be an overprovision argument - if objectors came in and said “50

licensed premises within 300 metres of premises”. Applicant said “20 such premises”.

If Board found that were 50 could that not challenge that before the Sheriff Principal?

Number of premises is surely the sort of thing that could be established by later

incontrovertible evidence. But one consequence of this is that for each hearing where

there is dispute as to fact there may be two hearings of evidence.

For recent Shrieval consideration of the scope of appeal for incorrect material fact see

the decision of Sheriff Holligan in Habib v. Central Fife Regulation Sub-Committee,

2008 SLT (Sh Ct) 57. This was an appeal under the Civic Government (Scotland) Act

1982. Error of material fact does not mean a chance to re-run the merits of the matter.

There the subcommittee of a licensing authority granted an application by local police

to reduce the opening hours of fast food premises following alleged trading outside of

the core hours. The licence holder of the premises appealed, submitting that the

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appeal proceeded pursuant to paragraphs 18(7) (b) and 18(8) of Schedule 1 to the

1982 Act.

The defenders opposed the leading of evidence maintaining that the correct approach

was to look at their reasons and only allow such a process where the pursuer had

shown that there was prima facie an incorrect material fact.

Sheriff Holligan held that the evidence had to relate to one of the grounds of appeal

and that it was not a general right to lead evidence but a right which had to be relevant

to a particular ground of appeal. It was that not only had there to be material fact but

the respondents had to have reached their decision on the basis thereof, and the

evidence did not truly relate to incorrect material fact before the defenders, but rather

that the events themselves were other than what the respondents decided. Paragraph

18(7) (b) did not permit the appellant, in effect, to re-litigate the whole matter. This

approach was followed in another 1982 Act case-Anderson v. Glasgow City Council,

10 May 2010, unreported.

Lastly the Sheriff has the power on upholding an appeal to substitute his own decision

for that of the board under section 131(5) (c). Given the quasi political, local

knowledge type of decision, may be unlikely that will be widely used – but that will

depend on the particular decision maker and the facts of the case. For a recent

examination of the power or remit and when it should be used see Sheriff Holligan

(test purchase case) in Alldays Ltd v. Central Fife Divisional Licensing Board [2007]

37 SLLP 34. This was a 1976 Act appeal but I think what he says will be relevant to

the 2005 Act as well. He said at paragraph 27 that:

It is axiomatic that section 39(6) can only come into operation when the appeal is allowed. The basis for allowing an appeal is set out in the four grounds in section 39(4). It is often the case, as it is here, that the facts may support one or more of the statutory grounds of appeal. The authorities establish quite clearly that, on upholding the appeal, the court then has a discretion as to whether to remit the matter to the Board for reconsideration (together with reasons) or whether to reverse or modify the decision. There is nothing in this subsection itself which gives guidance as to which of the two disposals should be followed. In my opinion, in determining which disposal to adopt the court will have regard to the basis upon which the appeal is allowed. There are dicta in Matchurban and Risky Business Ltd ("strong and compelling reasons"; "fairly unusual cases"; the Board is the "body upon which the function of deciding such matters is conferred") which might suggest there is some preference, or even a presumption, in favour of sending matters back to the Board for reconsideration.

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However, I do not think that is the case. In both William Hill (Scotland)Ltd and Matchurban, it appears that the Boards had information which they failed to impart to the appellants. The appellants had not the opportunity to comment on that information. The court held the Boards might or might not have granted the applications but that could only be determined when the Boards had the whole information before them. It is therefore not surprising that the matters went back to the Boards for reconsideration. Botterills was a case where a view was taken that the particular Board could not be sufficiently detached and thus the matter could not properly go back to the Board. In both Leisure Inns Ltd and Risky Business Ltd the court came to the conclusion that there was no material which would justify the Board in refusing the applications. Risky Business Ltd also involved an analysis of the reasons of the Board and whether it was just a question of reformulation of reasons. In both cases, a remit was not appropriate. I do not think that the reference to "unusual cases" in Risky Business Ltd means that the cases should normally be remitted back. It is perhaps more a reflection that there may be relatively few cases where it can be said that there is no material, and so on, which would entitle the Board to reach its conclusion.

There may even occasionally be the subject of an agreement between parties as to

what is an appropriate alternative disposal although there may be issues as to whether

parties can agree a disposal which can in any way bind the court.

There is a further appeal to the Court of Session on a point of law. There is a right

of appeal on a point of law alone under section 132(6). Presumably any order

recalling the Board’s decision continues. But if the full appeal proceeds with the

suspension or revocation in place it may be possible to appeal to the Court of Session

and seek an interim order ending this. It may be easier to do so if any stateable

ground of appeal exists and also because the time delay in a Court of Session appeal

would put even the most robust business under.

In a review case where a sanction has been imposed there is an additional basis of

challenge in proportionality. For the grounds of appeal more generally see Section

131(3) (a) of the Act and on proportionality section 131(3) (b) and section 131(4).

If an appeal is upheld the Sheriff can reverse the decision, remit for reconsideration or

reach any decision that the Board could have reached-see section 131(5).

More and more appeals are now coming through the system particularly as Boards are

now hearing applications for reviews and the sanctions imposed as a result are

challenged. There have only been a few appeals against refusal of applications to date,

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but that will probably change, especially as we begin to see more variation

applications coming on stream. The legal issues arising from application appeals and

variation appeals are likely to be similar, not least because the application procedure,

hearing procedure and grounds of refusal are pretty similar.

Also given the limited rights of appeal available to objectors it is likely that we shall

begin to see challenges being brought by judicial review as well. The recent

overprovision case from Prestwick-“Buzzworks”- is an example.

LICENSING OBJECTIVES-EMERGING CASELAW

In the case of Kaur v. City of Glasgow Licensing Board, 26 February 2010, reported

at page 14 of issue 44 of SLLP, Sheriff Scott overturned a decision of the Board to

refuse an application to convert to a premises licence on the grounds of inconsistency

of the crime and disorder and public nuisance objectives for off-sales premises. There

the applicant sought hours between 10am and 10pm. This application was the subject

of two objections directed at the grant of hours during the period from 8pm to 10pm.

It was claimed that the premises when closed at the earlier time had operated well and

that later opening had caused an increase in anti-social behaviour. However in his

Anti-Social Behaviour Report the Chief Constable reported that since the premises

had reverted back to remaining open at 10pm there had been no evidence for a

corresponding rise in anti-social behaviour in the area.

The application was refused as the appellant – perhaps boldly – refused to amend the

application to restrict hours to 8pm.

The decision of the Board was criticised by Sheriff Scott because it failed to deal with

the information in the police report. The Statement of Reasons and also the Stated

Case did not properly explain why, notwithstanding the comments from the police,

the views of the objectors were preferred. This is perhaps an echo of what was

decided in the Shafiq v. North Lanarkshire Licensing Board [2009] 42 SLLP 44

where Sheriff Powrie was critical of the Board for failing to give due weight to the

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fact that the police had not recommended refusal of the premises licence

notwithstanding the existence of a relevant conviction for one underage sale.

Kaur and Shafiq suggest that particularly in relation to matters of crime prevention

and public nuisance the attitude of the police is likely to be of considerable

importance, either to the benefit or detriment of the applicant.

Sheriff Scott’s point was that the police contribution was so obviously relevant it

could not be ignored and the Board had a clear duty to assess all of the material before

them and while they could have rejected the police contribution that could not be done

unless a report had been duly considered and an explanation as to why the objector’s

assertions were to be preferred. Although there was a new licensing regime this did

not mean that the Board was free from not taking into account material facts or

circumstances and although the Board’s assessment of what the objectives required

might give the Board a considerable area of judgment, this was a case of a plain

failure of having regard to a material consideration.

There have been some significant cases in relation to the use of policy on Board

decision making and how it relates to the licensing objectives.

In Brightcrew Limited v. City of Glasgow Licensing Board, 12 May 2010, reported at

page 20 of issue 44 of SLLP Sheriff Scott refused an appeal brought by Brightcrew

Limited against the decision of the Board to refuse an application for a premises

licence to convert an existing 1976 Act entertainment licence for a lap dancing venue.

In refusing the application the Board had relied on code of practice which was

incorporated as part of their statutory licensing policy. This code required that

dancers did not expose their genitalia during a performance and that there should be

no physical contact between dancers and patrons. Other matters raised related to the

availability of a risk assessment, the provision of chilled drinking water for

performers and CCTV coverage of private dance areas.

The main argument for the appellants was that the Board had simply refused the

application because it was inconsistent with the policy of the Board and that that was

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not the statutory test. The test was inconsistency with the licensing objective. Put

short the argument for the Board was that the licensing objectives were broadly

framed and that the policy was a means by which those objectives could be

furthered. As there had been admitted breaches of the policy it was a matter for the

Board to assess what weight should be attached to them.

It is fair to say that the arguments for the appellants rested on hallowed authority from

the 1976 Act such as Leisure Inns (UK) Limited v. Perth and Kinross District

Licensing Board, 1993 SLT 796 where the Inner House had held that for every

reason in a Statement of Reasons from a Licensing Board there had to be an adequate

basis on fact. The appellants contested whether such a basis existed.

It was also argued for the appellants that the concerns of the Board did not relate to

the sale of alcohol but to matters un-related to the sale of alcohol and that was not the

function of the Licensing Board. Again this submission was grounded in the

approach under the 1976 Act.

The Sheriff held as follows. It was plain that the preamble to the 2005 Act which

referred to the regulation of licensed premises and other premises in which alcohol is

sold, undermined the argument the line that the consideration of an application for a

premises licence ought to be solely concerned with matters directly related to the sale

of alcohol.

It was also clear that as every Board is required to publish a policy statement and was

obliged to have regard to ministerial guidance, this taken along with the scheme of

conditions made it impossible to escape the view that the 2005 Act was meant to

create an interlocking, schematic arrangement with a far broader impact on its

predecessor.

Whilst the Board could never exclude the free and proper exercise of discretionary

power, having regard to the broad nature of the objectives and the use of the adjective

inconsistent, the test for refusal under section 23 (5)(c) produced an exceptionally

wide vires and conferred an even wider discretion upon Boards than they had

previously enjoyed.

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The Board had been entitled to reflect upon the accepted breaches of the code of

practice when determining whether the grant of the application would be inconsistent

with the objectives and it could not be said that the decision of the Board was so

unreasonable that no properly directed Board could have reached that view.

Whilst the appeal failed on that ground the view of the Board that the premises could

only be considered to be suitable for the purposes of section 23 (5) (d) if they were

satisfied their policy would be met with was irrelevant and there was no material

before them on which they could infer that the premises were unsuitable for the sale

of alcohol.

Finally the fact that the applicants had accepted the Board’s policy did not mean that

they could not challenge the application of the policy to them on appeal. The Sheriff

rejected the argument brought by the Board based on waiver.

This decision seems to open up the way of drawing a distinction between the

decisions of Boards based on policy and those based on hard questions of fact.

Whilst on the one hand it was a question of Board policy as to whether or not the

particular requirements in adult entertainment venues promoted the licensing

objectives, compliance with policy was really not relevant to the question of

suitability of the premises in a physical sense. That was grounded more in hard

questions of fact.

However when the case came to the Inner House, the decision of Sheriff Scott was

overturned, albeit matters have been remitted to the Board for reconsideration. The

Inner House issued their Opinion on 12 July 2001 and can be found at [2011] CSIH

46 and is now reported at 2012 SC 67; 2012 SLT 140.

The Court of Session had this to say. The passages will be well known by now!

“[24]….It is, in our view, clear from what the 2005 Act terms its "core provisions" that the statute is concerned with the regulation of the sale of alcohol by means of the grant of licences. Of significance also, in our view, are the terms of section 27(7) of

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the 2005 Act which limit the extent to which a licensing board may impose particular conditions. In particular, a licensing board may not impose such a condition which "relates to a matter (such as planning, building control or food hygiene) which is regulated by another enactment." Counsel for the Board accepted, in our view rightly, that by the means of including, and insisting in the observance of, provisions in its published licensing policy statement, a licensing board could not thereby indirectly impose conditions upon a licensee which it would not be empowered to impose under section 27 in an individual case. Accordingly, the inclusion in a published policy statement of provisions purporting to regulate activities on, and off, licensed premises does not give those provisions any status going beyond the proper exercise by a licensing board of its function of licensing the sale of alcohol. [25] The contention advanced by counsel for the Board and accepted by the sheriff that the 2005 Act created "an interlocking, schematic arrangement with a far broader impact than the old Act" proceeds to a material extent upon the inclusion in the preamble to, or the long title of, the 2005 Act of the words which we have already set out as part of the quotation of paragraph [25] of the sheriff's note. However, in our view, it is to the particular scheme and provisions of the legislative text to which regard must properly be had in judging the true meaning and effect of the legislation. In our opinion, the terms of the 2005 Act were not demonstrated by counsel for the Board to yield a construction of the function, and proper ambit of that function, other than that for which, in broad terms, the Dean of Faculty contended. Counsel for the Board placed some emphasis on the fact that, under the former régime, the Board had put in place its code of practice for adult entertainment establishments in Glasgow and suggested that the 2005 Act envisaged and provided for the continuity of such regulations. But, as she accepted, there was no statutory basis for the promulgation of such a code of practice; so it is difficult to see any legislative intent to continue in existence a code of practice for which there was no foundation in the pre-existing legislation. [26] With those observations, we turn to the notion of "licensing objectives" as catalogued in section 4(1) of the 2005 Act, in the particular context of refusal of a licence on the ground of refusal set out in section 23(5)(c) of the statute. While the objectives so catalogued are couched in very general terms such as "preventing crime and disorder", it is important to note that those objectives are not, so to speak, "freestanding". They are qualified by the introductory reference to their being "licensing" objectives. Since the licensing with which the statute is concerned is the licensing of the sale of alcohol, it follows in our view that, in the context of section 23(5)(c) of the statute, inconsistency with a licensing objective is inconsistency flowing from the permitting of the sale of alcohol on the premises in question. The fact that the objectives listed in section 4 of the 2005 Act are all desirable in a general sense does not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol. For a licensing board so to insist would be to divert a power from its proper purpose - to use the terminology of French administrative law - a "détournement de pouvoir". [27] In light of the foregoing, it appears to us that the contention for the appellants that, in refusing the application for a premises licence in respect of their Drury Street premises, the Board has not appreciated or applied the proper statutory test is well founded. In essence, the approach of the Board is that of starting with their previous code of practice, drawn up without statutory warrant; then recording breach of certain provisions of that edict, none of which arose from or were related to the sale

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of alcohol; and from the existence of those past breaches concluding that the licence application should be refused. We consider that in approaching matters in that way the Board thus did not properly address the statutory test.”

POSSIBLE IMPLICATIONS OF BRIGHTCREW

The objectives are licensing objectives.

These are not licensing objective issues-health and safety at work, fire safety.

I am not sure the case takes away from the more general point that provided the

powers are used for a licensing purpose then the Board enjoys a wide margin of

judgment as to what the objectives might require.

However the objectives are licensing objectives. The issue is what is it in these

circumstances that throw up an issue because the premises are licenced?

The Inner House seems to be saying this was a case where Board purported to have

power which it did not have. That is different from a case where Board uses licensing

powers to promote the licensing objectives such as, for example, a case of reducing

hours to deal with crime and disorder or to reduce the availability of alcohol at a

certain time of the day as a way of protecting and improving public health. These

would plainly be a proper use of licensing powers for licensing purposes. 

That being said there will remain plenty of scope for debate as to what a licensing

purpose is!

What is the width of the vires of the Board? I suspect this includes not just what is

plainly within power but what is fairly incidental to it or consequential on it. Just

being desirable is not enough. It must be related to the main purpose.

“Connected purposes” in the preamble must be linked to the main purposes. That is

what the preamble means according to the Inner House.

So what is a sufficient link to sale of alcohol? That is likely to be the future

battleground. There must be a reasonable relation. Boards must have this in view and

be prepared to give adequate reasons. This takes me to…..

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Linking the objectives to decisions

There is a need to properly link any licensing objective to the actual decision that is

made.

Paragraphs 27 and 28 of the Opinion of the Court sets out why there was a lack of a

link between the activities complained of and the sale of alcohol.

This is done either via policy or the factual specifics of a case or both. There has to be

a sufficiently intelligible and reasoned link.

The Board must be satisfied that what is raised before it is a matter which goes to the

licensing function of the Board. The next stage, assuming a positive decision on stage

one, is to consider whether there will be an inconsistency with any objective.

Relevant Offences and the Crime Prevention Objective

A difficult area is that in relation to conviction for relevant offences. Absent any clear

link to the sale of liquor how does a Board bring home such a conviction in terms of

the licensing objectives?

How does one link a conviction for an offence under the Immigration Act 1971 say in

relation to employment of illegal immigrants to the crime and disorder objective?

That is a relevant offence but on the face of it has nothing to do with the sale of

liquor. The answer might be that the Act and the Regulations on relevant offences

(which are approved by the Scottish Parliament) deem such offences to be relevant.

Deeming provisions always involve a degree of artificiality and the argument may be

that conviction for such an offence is deemed to engage the crime and disorder

objective as there is a deemed link to the sale and supply of alcohol. It will take the

Courts to clarify this one.

There is already a debate in the licensing law press as to whether in the absence of

any obvious link to the sale of alcohol; a review can be made out. In terms of Section

36(3) (b) of the Licensing (Scotland) Act 2005 a ground for review includes “any

other ground relevant to one or more of the licensing objectives”.

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Whether or not a ground is relevant a licensing objective depends on how widely the

word “relevant” is to be interpreted. The deeming aspect takes one along the road to

relevance being made out, but it has to be relevant not just as a conviction, but as

relevant to the crime prevention objective.

Some grounds are plainly likely to be directly relevant to the objectives, as where

sales of alcohol are made to children, since such sales are directly related to the

licensing objective of the protection of children from harm in respect of the licensable

activity of the sale of alcohol from premises. They of course also plainly relate to

crime and disorder arising from a licensable activity.

Less clear is where grounds which are not directly related will suffice. Regrettably the

Scottish Executive Guidance is of little use. As far as I cans see only paragraphs 101-

102 deal with reviews and they provide no guidance on the substantive issues.

This is to be contrasted with Guidance issued for England and Wales which makes it

clear that a number of reviews may arise in connection with crime that may not be

directly connected with licensable activities. The Guidance refers to for example,

drugs problems at premises or money laundering by criminal gangs or the sale of

contraband or stolen goods there or the sale of fire arms.

The Guidance goes on to say that in any case, it is for the licensing authority to

determine whether the problems associated with the alleged crimes are taking place

on the premises and those problems are affecting the promotion of the licensing

objectives.

Of course criminal activity may or may not take place at times where a licensable

activity is occurring and may or may not have any connection with it.

To the extent that it does, there may be a proper basis for a review to take place but it

is probably correct to say a ground would not be relevant to an objective if it was not

connected with a licensable activity.

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So for example, if a review was sought for a premises licence authorising the sale of

alcohol for consumption on the premises, and the basis for review was that sales of

stolen goods were taking place on the premises, the sale of stolen goods would not be

relevant to the licensing objective of prevention of crime and disorder. They are

relevant to the objective of prevention of crime and disorder, but not the licensing

objective.

They may be relevant in the general sense but they are not relevant to the licensing

objective because there is no connection with the sale of alcohol.

The powers under the Act concern licensable activities and the authorisation for them

and review needs to relate to them. The power of regulation is to regulate the

licensable activity and it could not have been intended that review of a premises

licence, should extend to include matters unconnected with the licensable.

For a ground not to be relevant, it would be necessary for it to have no bearing on one

of the objectives. This may not be easy to establish given that the objectives are

expressed in broad terms.

It is probably not the case that general concern with crime and disorder will suffice.

In deciding on which of the steps to take the expectation is that a Board should so far

as possible seek to establish the cause or causes of the concerns which underlay the

problem and take remedial action directed at those causes.

In taking steps to promote the licensing objectives which should include steps to

prevent the commission of crime, this should be approached with the following in

mind.

It seems to me that the Board, when conducting a review on the ground that the

premises are being used for criminal purposes, that the role of the Board is solely to

determine what steps should be taken in connection with premises licence for the

crime prevention objective.

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Plainly though Parliament has determined through approval of regulations that certain

offences are relevant for licensing purposes and as a matter of generality therefore

they must be relevant for the purposes of crime prevention objective. Even so a

Board will still have to consider in what way the conviction was relevant to the

objective and whether a step is necessary or appropriate, viewed through the

perspective of the issue being one of the licensing objectives.

The existence of a relevant conviction per se is not in itself sufficient to take a step.

There must be something more.

The position is probably similar to the 1976 Act where a conviction alone was not per

se determinative of the question of fitness. There had to be something more – see

Cummins, Licensing Law in Scotland (second edition) at page 79.

The Board will have to make a link between a finding that there has been criminal

conduct either following upon a conviction or by the determination by the Board on

the civil standard of proof to that effect and in what way that relates to the prevention

of crime and disorder for the purposes of that licensing objective.

In some cases it may not be much more. In other cases a Board may find it difficult to

identify relevant material in which to link the objective to the relevant conviction.

Paragraph 26 of Brightcrew makes the point that in the context of Section 23(5) (c),

inconsistency with the licensing objective is inconsistency flowing from the

permitting of the sale of alcohol in the premises in question.

Although this passage is concerned with the refusal of an application rather than

review, it does not seem to me that a different approach would be taken in connection

with review. Plainly adopting the language of the court the licensing objectives still

remain objectives in relation to the licensing of the sale of alcohol.

In Brightcrew at paragraphs 27 and 28 in the Opinion of the court there is set out why

there was a lack of a link between the activities complained of and the sale of alcohol.

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There has to be a link done either via a policy or the factual specifics of a case or

both. There has to be a sufficiently intelligible and reasonable link.

There may be some cases where the relevant conviction is for the breach of a

licensing provision e.g. performing a play in an unlicensed theatre. On the face of

that it might not have much to do with the sale of alcohol if it came up before a Board.

However a Board might have concerns that such a person might have a disregard for

licensing provisions generally and accordingly could have concern that they would

abide by liquor licensing law.

Other cases could emerge as for example where there is a breach of the Copyright,

Designs and Patent Act 1988 in relation to the prohibited showing of a football game

in a public house where the copyright holder has not given permission. That in itself

is not related to the sale of alcohol but one could readily imagine circumstances in

which such games are shown in licensed premises and where they are part of the

reason people go to licensed premises to drink there. There might be an arguable link

there between the sale of alcohol and the crime. If the offence took place at home

using a home decoder then the relevance of the offence to the licensing objectives

might be rather more remote.

Plainly each case will differ and it is difficult to give hard and fast guidance beyond

that.

Conditions

Another issue is that of conditions. Clearly one has to link conditions to the

objectives. The link may not always be obvious. However some English cases have

held that it is sufficient if the activity which is subject to the condition is one which

occurs because of there being a direct link to the licensable activity-see Peck v.

Amber Valley LBC, 2008 Derby Mgs Court, unreported and Developing Retail Ltd

v. South East Hampshire Mgs Court and another [2011] EWHC 618 (Admin).

Arguably Section 27(9) (b) of the 2005 Act supports this approach. However

conditions cannot be vague or they will be unenforceable-see eg Developing Retail

17

Ltd where a condition on inaudibility of noise in adjoining premises was held to be

too vague to be enforceable.

Discretion or judgment of the Board

Brightcrew leaves untouched the view that provided a matter is within the scope of

the licensing function properly understood, that it will only be on general

Wednesbury grounds that the court will interfere. To that extent the Board still

enjoys a broad margin of judgment.

Duplication of regulation

Section 27 of the 2005 Act is about preventing a Board imposing a condition which

does not relate to licensing e.g. seeking a planning end by using licensing powers.

Section 27 says “Which is regulated under another enactment”.

That is perhaps the key. Striking examples given in section 27 are planning, building

control, food hygiene. These are plainly examples of matters which are not going to

be related to the licensing objectives or indeed licensing save in a remote sense.

This gives colour to what this is about. It is saying if the subject matter is regulated by

another Act then Board cannot encroach

But it is plain from the 2005 Act in section 4(1) that public nuisance is a matter

regulated under the 2005 Act. However public nuisance might also be regulated under

other enactments -for example noise nuisance via the Environmental Protection Act

1990. What then? Surely a Board has a role in controlling nuisance caused by licensed

premises?

Arguably if section 27 had said “also regulated under another enactment” then that

would be the clearest possible sign that even if it is a licensing related issue, if it is in

any way dealt with by another Act, then the Board has no role.

18

However it simply says “regulated under other enactment”. Arguably a clear pointer

to the view that if it is not a matter which 2005 Act is not in any way concerned with

then do not use licensing powers as other legislation exists.

Para 26 of the Scottish Executive Guidance arguably supports that view:-

“Duplication

26. Statements of licensing policy should include a firm commitment to avoid

duplication with other regulatory regimes so far as possible. For example, legislation

governing health and safety at work and fire safety will place a range of duties on the

self-employed, employers and operators of venues. These may be in respect of

employees and customers on the premises. Similarly, many aspects of fire safety will

be covered by existing and future legislation and should not be duplicated through the

licensing regime.”

These are not licensing objective issues-health and safety at work, fire safety. That is

what paragraph 26 is about. It tells Boards on the one hand to promote licensing

objectives but on the other to not use licensing powers for ends covered by other

regimes.

There are likely to be arguments the other way though by those who argue for the

fullest possible limit on the powers of the Board where there is any hint of

duplication. There is therefore still a degree of uncertainty over just what the proper

scope of section 27 might be. It is though plainly correct to say as paragraph 24 of the

Opinion of the Court says that if a Board cannot impose a condition because of

section 27, it cannot try to do so via section 6 policy.

We are beginning to see other cases taking this issue up.

In Bapu Properties Limited v. City of Glasgow Licensing Board, 23 February 2012,

Sheriff Reid overturned the decision of the Board to refuse a variation application.

This related to an outside drinking area. The view of the Board was the area was

unsuitable for the sale of alcohol and there was an “impact” on pedestrians.

19

In essence the Sheriff took the view that standing planning consent and approval from

the Council as the roads authority, concern over possible “pavement congestion”

could not be linked to the sale of alcohol.

He made the point that “The board is not concerned with preventing public nuisance

generally. The Board is only concerned with the prevention of public nuisance so far

as referable to the sale of alcohol”.

He could not see any distinction between the impact on the area or whether the

premises were licensed or not or whether or not alcohol was sold or not. There would

be no likely increase in the alleged congestion if alcohol was sold.

This also seems to support the point I made about duplication. It seems to me that the

Sheriff is here making the point that a Board does have power to regulate areas

covered by other legislation provided the area of regulation is linked to the sale of

alcohol and the licensing objectives are properly engaged. That is because he made

the point that the Board does have a concern to prevent public nuisance provided it is

related to the sale of alcohol.

To the extent that other regulatory regimes might exist that will often be

determinative of whether the Board should take any action. However if the issue in

question raises a concern linked to the sale of alcohol then the Board arguably does

have power to take steps.

More recently in Northset v. City of Glasgow Licensing Board, 22 March 2012, the

Board was overturned this related to “outside drinking” area.

Here the concern of the Board related to stairs to access the area. The Board took the

view that the stairs were too steep having regard to their use by persons who had been

drinking. It also considered the area would be “cramped and congested” and would

have an impact on the convenience on the part of customers.

The Acting Sheriff Principal (Edward Bowen QC) was not impressed by this

reasoning. His view was that if the stairs complied with the relevant building

20

standards provisions it was not open to the Board to consider the “public safety”

objective. It seemed that the Board was relying on a “general impression” as to what

public safety required and that was simply not enough nor was it reasonable for the

Board to reject the application on the grounds of convenience.

He made the point that Sections 27(7) 142(3) of the 2005 Act made it plain that

boards should not stray into areas covered by other enactments when dealing with

applications under the 2005 Act.

Health Objective cases

Any policy based on the health objective must be adequately based in fact and be

capable of being defended on the facts on an appeal.

In my view material to support a health based policy must be (1) properly sourced, (2)

reliable, (3) sufficient generally, (4) sufficient to support the particular outcome

sought or conclusion reached and (5) be plainly rationally linked to the licensing of

the sale of alcohol and not other matters which might only have an indirect link to that

activity.

Brightcrew is an example of where it was difficult to see the link between the actions

of the dancers and the health objective-at least insofar as the licensing of alcohol is

concerned.

“Policy hours” cases

Cases such as Carmunnock Village Recreation Club v. City of Glasgow Licensing

Board 9 July 2010 and Drinkcafe v. City of Glasgow Licensing Board 2011 SLT (Sh

Ct) 50 are probably unaffected by Brightcrew.

There is a far clearer basis for arguing that the control of the sale of alcohol by use of

a policy on hours is very much about issues which arise from premises because they

are licensed. They are more clearly about licensing objectives.

21

A nightclub which is open late at night and provides alcohol to patrons is more likely

to generate nuisance concerns than an unlicensed theatre or cinema. Control on hours

is one way in which the problems caused by the sale of alcohol in late night premises

can be dealt with and the objectives met.

One can see, by adapting what Lord Eassie says at paragraph 26 of the Opinion of the

Court, that there might be an inconsistency with the crime or nuisance objective if

alcohol is allowed to be sold late at night. That would be an inconsistency with the

objective because of the link to alcohol sales late at night.

Judicial review of Board policy or challenge it on appeal?

Vires of policy can be challenged on appeal. No need for a separate judicial review.

This is clear from paragraph 22 of the Opinion of the Court.

Suggests need for policy to have sufficient factual basis as on an appeal the court

might have to evaluate the reasonableness of the policy and not just the

reasonableness of the decision.

A recent example of this was Sinclair Collis Ltd, Petitioners [2011] CSOH 80, Lord

Doherty. This was a petition for judicial review which challenged the legality of the

Scottish Parliament enacting section 9 of the Tobacco and Primary Health Services

(Scotland) Act 2010.

One contention was that the section 9 (which banned cigarette vending machines on

public health grounds) was based on factual material which was flawed. The court

held that whilst the material was open to criticism it was primarily for the Scottish

Parliament to determine if reliance could be placed on it. On the facts the court held

that the Parliament was entitled to reach the conclusions it did. The Inner House

recently reached the same conclusion-see Opinion of 10 October 2012 at [2012]

CSIH 80.

Taking this line further and under the 2005 Act one can see how a Board might on

appeal have to provide evidence that it has properly considered reliable material

22

before reaching a decision on a new policy. Indeed aspects of the Guidance eg on

overprovision plainly envisage the need for Board policy to be capable of being

scrutinised in this way.

In that regard clued up practitioners might use FOI to access the material the Board

proceeded on if the Board has not already disclosed it.

Disposal

The decision is good for Boards on the remit point. Despite the clear concerns over

the remarks made by the Chairman, the Court still considered a remit back to be

appropriate. This is good for the Boards in that it is useful authority to show the

reluctance of the Court not to remit back even in a case where there is an arguable

question of whether a remit back will be approached with an open mind.

VARIATION OF CONDITIONS

In BM Taverns Ltd v. Perth & Kinross Licensing Board, 19 October 2012, Perth

Sheriff Court, Sheriff Foulis dismissed an appeal brought by a pub operator who

challenged a decision of the Board not to vary the conditions imposed on his licence

on conversion from a 1976 Act licence. I acted for the Board.

The Board held that as per section 30(5) (b) of the 2005 Act it would be inconsistent

with the licensing objectives to vary the conditions. The conditions were common

ones relating to the need for policies on matters such as litter, drugs, weapons,

prevention of noise (including keeping the doors closed so as not to annoy

neighbours), CCTV and the like.

The operator argued that the conditions involved micro-management of the premises;

were inflexible and unreasonable; were not required by the police and had no basis in

fact. He also argued that any improvements brought about in the premises had come

about because of good management practice which reflected the conditions and not

because of the conditions themselves.

23

Sheriff Foulis rejected these arguments. He held that the question of inconsistency

could be approached from the perspective of Board policy. Most of the conditions

were reflections of Board policy which in turn sought to promote the objectives. He

noted that the conditions had been imposed under section 27 as the Board considered

it necessary or expedient for the purposes of the objectives so to do. Prima facie an

attempt to remove an established conditions framework was inconsistent with the

objectives. This really meant there was a practical onus on an applicant to show that

there would not be an inconsistency.

In addition he noted, following Drinkcafe, that conduct which might be consistent

with the objectives but which was inconsistent with policy, does not mean that an

application must be granted.

He also accepted that the Board enjoys a wide discretion and that the objectives are

important goals which the Board should strive to secure. He did not accept that the

conditions were inflexible-many of them left it to management to design a policy to

meet the needs of the premises, many of the conditions only required there to be a

policy. He also accepted that the Board were entitled to infer that improvements had

been brought about by the conditions being in place. The lack of a police objection to

removal or relaxation was not determinative. The Board were aware of that but

weighed it against the whole material in the case.

LIDL-TEST PURCHASING AND CRIME AND DISORDER

The Lidl case is the current controversial case in the review of premises licence in

under age sales. The Inner House appeal was heard in early November.

The background to the debate in Lidl goes back to an earlier case, Co-Operative

Group Ltd v. Inverclyde Licensing Board, 7 October 2010, Greenock Sheriff Court,

where Sheriff Principal Kerr QC overturned a decision of the Board to suspend the

licence for the Co-op following a single test purchase. This led to the view that single

24

test purchase failures would be very unlikely to support the sanction of suspension.

The facts of that case were as follows.

A girl aged 16 bought a bottle of rosé wine and the police brought a review on the

basis of the crime and disorder objective. The Board was told about the detailed

training regime the Co-op had in place. Even so suspension for two months followed.

The Sheriff Principal gave an oral judgment on the day. A note of written reasons has

been requested. It is not clear if those reasons will be issued. However in his

judgment he held that the occurrence of a single incidence of an underage sale of

alcohol was not in itself a sufficient basis to establish a ground for review without

more material than the Board had. There was no material to suggest that the crime

prevention of public nuisance objectives had engaged. It was noted the Board had no

means of assessing whether the test purchaser was so obviously under the age of 25

as to show the assistant had irresponsibly inserted the age of 25 in the till system.

Of note is that although the reasons were generally adequate the Board had failed to

take into account a relevant factor, namely the extent to which the suspension would

promote the objective of preventing crime and disorder.

Finally even if the Board had correctly found a ground for review to have been

established a suspension for any length of time for a “casual error” in the context of a

“first offence” was disproportionate. A warning would normally be appropriate.

Accordingly the next decision was a surprise to many. A rather different outcome was

arrived at by Sheriff Mitchell at Glasgow Sheriff Court in Lidl Gmbh v. City of

Glasgow Licensing Board, 4 November 2011.

In that case the Board suspended the licence of a Lidl store for five days following

upon a failed test purchase. A bottle of wine was sold to a 16 and a half year old test

purchaser. There was no challenge at all. The person who sold the drink was the

manager. He was subsequently dismissed and the store passed a second test purchase.

I acted for the Board and Robert Skinner acted for Lidl.

25

The argument put up for Lidl was that they had not been at fault and there was no

material to show that the licensing objective of the prevention of crime and disorder

arose in this case. The Sheriff rejected these arguments.

He took the view that cases decided under the 1976 Act such as Sohal v. Glasgow

Licensing Board , 30 October 1998, were different. The 2005 Act was part of a

regulatory scheme devised in the public interest and was not about the determination

of criminal law liability. There was a wider approach available to the Board which

was about taking action which was “necessary or appropriate” for the purpose of

achieving one or more of the objectives, which objectives are expressions of the

public interest.

A similar line was taken in an appeal against revocation of a personal licence in

Archer v. Edinburgh Licensing Board, 22 December 2011, Sheriff EC Mackie.

These cases suggest culpa may have been relevant to 1976 Act style “fitness and

propriety” but has no real role on deciding what is inconsistent with the licensing

objectives for the purposes of review of premises or personal licences. It will be

interesting to see if this line survives the Inner House in Lidl.

Here the Chief Constable carried out the test purchase operation against a background

of complaints from local residents in respect of increased underage drinking and

youth disorder. The Sheriff accepted that the licensing objective included

considerations of deterrence and it was open to the Board to take the view that if there

were instances of underage drinking and youth disorder in its area then a question

arose as to whether the objective of preventing crime and disorder was being

maintained in that area.

He was satisfied that the mere fact of the underage sale was not the sole basis upon

which the Board had been satisfied that a ground for review was established. They

did not apply a strict liability test. Read as a whole there was sufficient information

before the Board to entitle them to reach the view that the objective of prevention of

crime and disorder was established against the background of a sale by the manager

on an unchallenged basis to a test purchaser in an area where there were concerns

over youth disorder and underage drinking already.

26

He considered that it was plain the Board took into that the account the second test

purchase was passed and also that there was nothing to suggest that there had been

any previous sale to a person under 18. The Sheriff took the view that where the

manager who was in a position to supervise more junior staff, by failing to ask

someone who did not look more than 16 and a half years for ID and then sold alcohol,

there was sufficient material to entitle the Board to conclude there was a serious

defect in the system for preventing such sales and which could compromise the

objective of preventing crime and disorder.

The Sheriff took the view that it showed that there was no safeguard to prevent a duty

manager from selling alcohol to someone who was obviously underage.

In relation to the next issue of whether it was “necessary or appropriate” for the

purpose of preventing crime and disorder his view was that the Board had a wider

area of discretion than under the 1976 Act. In deciding what was necessary or

appropriate the Board required to keep the objective of preventing crime and disorder

in view in any step they decided upon had to take to meet that objective.

The Board was entitled to consider the matter of deterrence in determining what steps

were necessary or appropriate and he accepted my argument that the matter of

deterrence serves to remind premises licence holders of the need to maintain high

standards in respect of the sale of alcohol and the consequences of a failure to adhere

to such standards. It reminded licence holders of the need to employ staff who are

likely to comply with the law, the need to be vigilant and that the suspension of a

licence could also promote the objective of preventing crime and disorder by sending

out a message that more needed to be done to prevent underage sales.

Unsurprisingly Lidl relied heavily on the Co-op case. However the Sheriff thought it

was important that in that case the mistake had been a casual one by a cashier who in

difficult circumstances had made an error of judgment. He though the facts of that

case were quite different from the present case.

27

He took the view that notwithstanding the passage of the second test purchase, the

fact that the staff had undergone a refresher course (albeit there was nothing to

suggest that the training had been changed or improved) or that there was no previous

known example of an underage sale, that did not mean that the Board were not

entitled to suspend on this occasion. The short period of suspension was

proportionate.

There are other issues which I think the case highlights.

The Sheriff made it clear that a review on crime prevention grounds is not an exercise

in determining criminal liability. Lidl is a clear example of a Board determining that

prima facie the crime and disorder objective was engaged. The circumstances there

were plainly relevant to the licensing objective given the failure of a test purchase.

There was no conviction of either the manager or the company.

Sheriff Mitchell on Lidl seems to support the view that what a Board is concerned

with is determination of matters of crime and disorder for licensing purposes and it

does not exist to determine criminal liability.

This approach would seem to support the view that a Board is entitled to exercise

review powers whether or not there has been a criminal conviction or whether or not

proceedings are ongoing.

It is also important to note this. That activity may take place notwithstanding the

reasonable efforts of the licensee (and those working at the premises) does not stop

the Board from taking any necessary steps in the wider interests of the community.

This must be so given that this is about the public interest and the prevention of crime.

It is also relevant to consider that the typical basis for suspension of a licence under

the 1976 Act in the common case where there was an allegation of underage sale, was

by reliance on the ground that the licenceholder was no longer a fit and proper person-

see section 31 of the 1976 Act. That incorporated an assessment by the Board which

required moral turpitude or culpa.

28

By contrast the 2005 Act provides different grounds for review, namely breach of a

condition of the licence and/or a ground relevant to the licensing objectives-see

section 36(3).

The Act is not concerned with the considerations of allocating blame before action is

taken, although in most cases there will be a discernible element of fault of whatever

degree. Certainly the presence of fault makes a decision easier to defend.

For example the crime and disorder objective need not be related to criminality on the

part of the licenceholder or staff. It could be acts by third parties.

“Fault” may often be an issue but the concern is wider and is about taking action

which is “necessary” or “appropriate” for the purpose of one or more of the licensing

objectives and these objectives are in turn expressions of the public interest. Public

interest considerations are pre-eminent. The review process is part of an

administrative and regulatory scheme. It is not about the allocation of criminal law

liability. The Sheriff in Lidl seems to have accepted that.

At the same time where a Board is met with the argument that a due diligence defence

might be open to the licenceholder, that might be a relevant matter to consider in

deciding whether a ground for review is made out. The Board is not making any

finding on criminal liability by doing that but would be recognising that might be

relevant in deciding if there was material to inferring that the crime and disorder

objective was in play.

Bear in mind though that even if the premises licenceholder had such a defence it

does not follow that no relevant crime issue arises. In particular the sale by an

assistant may still be a concern to the Board in relation to the objective even if the

licenceholder was not to blame. Again one can I think see how, the approach under

the 2005 Act is broader than the old fit and proper approach under the 1976 Act.

Lidl have now appealed to the Court of Session. The case is likely to determine

(hopefully once and for all) the vexed question of what a Board should do in face of a

single test purchase failure. The appeal is due to be heard in November 2012.

29

Meantime at Kilmarnock Sheriff Court, in Shahzad v. East Ayrshire Licensing

Board, November 2011, Sheriff Bryson upheld a decision to suspend premises and

personal licences against a background of two incidences of underage sales. She did

however reduce the period of suspension from 6 months to 4 months.

She held that there was no error of law by the Board having taken into account a

framework document from the Ministers on current and intended measures to deal

with alcohol misuse in Scotland. The Board did not err in taking into account local

concerns over alcohol misuse and anti-social behaviour. She considered that the

objectives were goals which the Board could decide to meet in a number of ways.

Different Boards might take different approaches.

She also agreed with the idea that under the 2005 Act the fit and proper approach and

need for culpa was displaced by broader public interest considerations.

As regards the length of suspension the six month suspension was the maximum that

could be issued in relation to a personal licence. Although the issues were serious, that

suspension should be reserved for the most serious cases. Here the sales had been at

the hand of a staff member and there was nothing to show that the appellant had

actually been present when the sales had occurred or had known about them when

they happened. Whilst his record was not without incident, it was not the worst. There

had been no prior warnings.

In a more recent case, Tesco Stores Limited v. Midlothian Licensing Board,

Edinburgh Sheriff Court, 17 April 2012, a decision of Sheriff Principal Stephen, she

appeared to accept that the Sheriff in Lidl was correct to hold that the Act takes a

different and wider approach to matters of public interest concern than did the 1976

Act. At paragraph [51] she referred to the Section 4 objectives as having “the public

interest as the prime consideration” and that it was “not difficult to notice that the

licensing regime of the Act is more concerned with the public interest objectives than

the previous Licensing Act, the Act of 1976”.

30

Of interest is that the broader background of local circumstances was also relevant to

the Sheriff Principal where at paragraph [78] she noted that there were features

relating to the case before her which were different from the case before her and in

particular that the Chief Constable’s letter seeking a review referred both to a failed

test purchase but also information relating to complaints “within the local community

regarding increased underage drinking and youth disorder”.

Also the Sheriff Principal noted at paragraph [78] that in Lidl “the person who served

the test purchaser was the duty manager and the personal licensing holder and in

essence the person who was an important part of the licence holder’s system from

enforcing and implementing their training policy”. That feature alone places the case

decided by Sheriff Mitchell in a completely different category from the current case

as a clear and obvious concern in that case about whether the systems operated

effectively in the licensed premises which were entirely absent in the incident place”.

It is not unreasonable to expect that a holder of a premises licence should have

measures in place to prevent under-age sales and that they are adhered to by an

important employee such as a personal licence holder occupying a supervisory and

managerial position.

Tesco won the Midlothian case but the facts seemed to have been different from Lidl.

The Sheriff Principal said this at paragraph [78] of her Note:-

“Before I conclude I should add that I have had regard to the authorities cited. Most

authorities are special on their own facts and circumstances. It was of significance

that the decision of Sheriff Mitchell in Lidl v City of Glasgow Licensing Board was

discussed in submissions. It appears that this is the first decision available dealing

with a failed test purchase under the 2005 Act. I have considered that decision which

I am told is to be appealed to the Inner House of the Court of Session with some

interest. There are, however, important features relating to the facts of that case

which distinguish it significantly from the present case. Firstly, the Chief Constable's

letter seeking a review refers to the failed test purchase but in particular gives

information to the Board relating to complaints within the local community regarding

increased under age drinking and youth disorder. With regard to the under age

drinking the intelligence indicated that persons under 18 years of age were

31

consuming alcohol in the locality where the licensed premises are situated. In the

current case there is no such information and the application for review relates solely

to the failed test purchase albeit that the letter mentions three of the licensing

objectives. Secondly, in the Glasgow case the person who served the test purchaser

was the duty manager and the personal licence holder and in essence the person who

was an important part of the licence holders' system for enforcing and implementing

their training policy. That feature alone places the case decided by Sheriff Mitchell in

a completely different category from the current case as there are clear and obvious

concerns in that case about whether the systems operated effectively in the licensed

premises which are entirely absent in the instant case. The sheriff says at paragraph

43 "When the considerably trained duty manager, who in the pursuers' system is

meant to supervise other more junior staff, failed to ask someone who did not look

more than 161/2 years of age for identification and then sold alcohol to him on

licensed premises there was, in my judgment, sufficient material to entitle the

defenders to conclude that there was a serious defect in the premises licence holders'

system for preventing such sales which compromise the licensing objective of prevent

crime and disorder. In my judgment, the defenders reasonably concluded that the

failure of the pursuers' system on the occasion of the first test purchase was a serious

one." Accordingly, I consider the facts and circumstances of that case very different

and distinguishable from the facts of this case.”

This suggests that there might be a “sliding scale” at work here. Some cases might-

because of public interest considerations-be seen as inherently more serious than

others and even where the fault on the part of the operator is small or perhaps non-

existent, public interest will justify a sanction. On the facts of the Midlothian case that

could not be said. It also fair to say in that case the Board made material error on the

scope of the objectives given the age of the test purchaser and the definition of child

in the Act!

On 21 July 2011 a test purchase operation was carried out at the pursuers' Dalkeith

premises resulting in a positive sale under test conditions to a young person aged

161/2. The test took place at approximately 8.50pm in the evening. The test purchaser

was served by an adult member of staff with two 330ml bottles of beer. The test

purchaser paid for the beer with cash. The pursuers' employee did not ask the test

32

purchaser for identification of age. The pursuers' employee was subsequently

cautioned and charged with a contravention of section 102(1) of the Licensing

(Scotland) Act 2005 - Sale of Alcohol to a Child or Young Person.

On 10 October 2011 an Assistant Chief Constable of Lothian and Borders Police

made application to the defenders for review of the premises licence following the

sale of alcohol to the young person during the test purchase operation already referred

to. That application was made in terms of section 36 of the Act and narrated that the

pursuers' store adheres to a "think 25" policy whereby persons who appear to be under

the age of 25 years are asked to provide identification. The check outs within the store

have an electronic prompt that encourages all staff to check that persons are of

suitable age when age-related products such as alcohol are scanned. Along the way

the Sheriff Principal had much to say.

On specification of the basis of the review she said:-

“54 I pause to observe that the concluding part of the Assistant Chief Constable's

letter seeks to identify three of the licensing objectives which may be contradicted by

the illegal sale of alcohol. It does not however, give any other specification as to the

manner in which the licensing objectives are contradicted or any specific concerns

that Lothian and Borders Police have regarding these premises in particular in

connection with crime and disorder and public nuisance and protecting children from

harm. It makes a somewhat sweeping statement that the illegal sale of alcohol taking

place within the premises demonstrates a level of negligence and responsibility that is

unacceptable. The only way of construing the paragraph is with reference to the

single incident referred to in the body of the letter namely, the failed test purchase on

21 July 2011. There is no other information in the letter to suggest that the illegal sale

of alcohol in the premises is an ongoing matter. Likewise there is no indication of the

level of negligence and irresponsibility and whose negligence the Assistant Chief

Constable is referring to (the pursuers or the pursuers' employee). Bearing in mind

that the letter of 10 October 2011 requests a review of the premises licence due to a

failed test purchase operation which had occurred several months prior it is

unfortunate that the author of the letter fails to explain the link between the member

of staff's failure to ask for ID and the assertion that this demonstrated an

33

unacceptable level of negligence and irresponsibility. There is no attempt to

distinguish the negligence of the individual employee and the premises licence holder

being the pursuers. It may be that that part of the letter is standard in premises

licence review applications made by the police following failed test purchase

operations. A more discriminating approach would be helpful for the purpose of

Licensing Boards identifying the gravamen of the review application. It is reasonable

to assume that any Licensing Board will have due regard to applications from local

police for review and accord some weight to what is said in the application and at any

review hearing. It is therefore of considerable importance that the application

identifies and specifies the nexus between the facts and the licensing objectives which

are said to be contradicted with specific reference to the premises whose licence is to

be reviewed.”

On the basis of challenge she found this had been made out.

“[56] In determining that the first part of the test had been established namely, that

the ground for review had been established the Licensing Board give reasons

for that decision. These reasons can be found towards the bottom of the third

page of section 10A. Reading short the Board are clearly well aware that the

failure related to the actings of a member of the pursuers' staff rather than the

pursuers' systems for training put in place to fulfil their obligations in terms of

the premises licence. Nothing was said that contradicted the pursuers'

representations and advice to the Board as to the pursuers' significant

investment in staff training and check out systems to prevent sales of alcohol

to under aged persons in general. There is nothing to gainsay the pursuers'

assertion that they took all reasonable steps to avoid selling alcohol to

persons under 18 and that the steps they took were above and well beyond the

minimum prescribed by legislation, regulations and guidance.

57. Against that background it is not difficult to understand why the only

explanation that was given to the Board by Mr Cummins solicitor for the

pursuers, was "inexplicable human error" on the part of the employee

working on the check out for whom Mr Cummins did not act and who had

34

been already cautioned and charged with a contravention of section 102 of

the Act.

58. It is clear to me that the reasons for the defenders determining that the ground

for review was established relates to the pursuers' employee's failure to

comply with the law and they go on to correctly state "In the view of the

Board it would have been reasonable to have expected a member of staff who

had undergone the necessary training to have asked the test purchaser for

identification, which would have resulted in a pass of the test purchase." I

doubt that the pursuers would disagree with that statement. When the Board

go on to state that there had been a clear departure from the policies and

procedures which had been outlined to the Board it is implicit given what they

have already said that they mean a departure by the employee in question.

59. The board go on to state "The Board also considered that the sale of alcohol to

a child or young person under 18 would, per se, cause harm to that child or

young person." This passage is significant for two reasons. Firstly, it

represents a departure from the terms of the actual decision taken which

referred to the licensing objective of "protecting children from harm" when

they refer to the sale of alcohol to a child or young person under 18. Indeed, it

can be seen from the terms of the interpretation section (section 147) that for

the purposes of the Act a child means a person under the age of 16 whereas a

young person means a person 16 or 17. The failed test purchase related to a

young person aged between 16 and 17. It matters not whether the test

purchaser was 16 or 17 in terms of the Act he or she was a young person and

not a child. Secondly, the statement indicates that the sale of alcohol to a child

or young person per se (in itself) would cause harm. That statement is, in my

view, both erroneous and confusing. There are of course, clear, well founded

and legitimate concerns about the consumption of alcohol by children and

young people especially when that is irresponsible and leads to criminal,

nuisance or antisocial behaviour, not to mention, danger to health. The

assertion, however, that the fact of sale of alcohol to a child or young person

is in itself harmful relates not to the consumption of alcohol but to the

purchase or sale of alcohol. This in itself would be directly contradicted by

the terms of sections 106 and 107 of the Act which in certain circumstances

35

permits the consumption of alcohol by a child or young person or indeed the

sale of alcohol by a child or young person.

60. Indeed, it appears to me that the assertion made contradicts not only the

legislation but the Board's own policy to which I have been referred. At 11.1

the Board emphasises the wish to encourage "family friendly premises". In

this context the policy is referring to licensed premises such as bars and

restaurants which serve alcohol and are suitable for children also. In

determining any such application the Board will, of course, consider the need

to protect children from harm.

61. The second part of the Board's policy relates to the prevalence of underage

drinking in Midlothian and the links with crime. These are indeed very real

and legitimate concerns and are encountered on a daily basis in the courts.

However, although the application invokes the licensing objectives of

preventing crime and disorder and prevent public nuisance, no facts are

stated in support of these objectives and the Board does not suggest that these

objectives have been established in the current review. Reference has been

made to the guidance issued by the Scottish Government which states at Para

240 - "Children need protection from environments which are wholly

unsuitable and they need to be prevented from being placed in a position

where it is easy for them to circumvent the law and obtain alcohol". There is

no suggestion that the Pursuers' premises are anything but suitable as it is

well known as a supermarket where families do their shopping. Furthermore

the Board in this case are dealing with one failed test purchase against the

background of high volume sale of alcohol which suggests that it is far from

easy to obtain alcohol at the Pursuers supermarket if under age. It would

appear that this licensing objective is being met

62. Accordingly, having regard to the reasons and explanation set out by the Board

themselves that, in my view, discloses errors of law in respect of the

interpretation of the Act and furthermore, it is difficult to avoid the conclusion

that the Board's assertion that the licensing objective of preventing children

from harm has been correctly invoked by virtue of the single failed test

purchase to a young person over the age of 16 is simply wrong.”

36

On a further ground of appeal which was based on the notion that strict liability had

been imposed she had this to say:-

“63. I turn to consider the second ground of appeal that the Board erred in law in

that there was no proper basis or no properly articulated basis for holding

that a ground for review had been established. It is clear from a

straightforward reading of the Board's reasons that the pursuers' systems for

training went beyond the statutory requirements and were not criticised. The

Licensing Standards Officer reported no adverse comment. The Board

appeared to recognise that the failing was on the part of the employee and not

the system but then the Board appears to contradict its own reasoning when it

highlights that there was "a significant discrepancy between the sale of

alcohol to a person aged 161/2 and the "challenge 21" and "think 25" policies

then in force at the premises. It was clear to the Board that this significant

discrepancy meant that the procedures in place could not be relied upon to

prevent the sale to any person under 18, children as well as young persons."

This statement entirely contradicts the statement made earlier that it would

have been reasonable to have expected the member of staff (who had

undergone training) to have asked for identification. Although the Board

referred to the policies and procedures which are intended to reduce the risk

of alcohol being sold to any person under the age of 18 it appears that the

Board then proceed to conflate minimising of risk with elimination of risk of

sale to persons under 18. The Board refer to the failure to take the reasonable

step of requiring identification, which is a failure on the part of the employee,

and then proceed to connect that with a failure to prevent sales to children

and young persons. That, in my view, is a clear indication that the Board have

fallen into error by requiring a system which is foolproof and prevents sales

of alcohol to children and young persons under 18. That indicates that the

Board adopted a test of strict liability to this application. Had the purpose of

the legislation been to impose a penalty on any infringement of the prohibition

against underage sales of alcohol then the legislators would no doubt have

imposed a strict liability test and a mandatory penalty.

37

64. I accept that the 2005 Act adopts a broader public interest approach to the

sale of alcohol than the 1976 Act did. That does not mean that the decisions

based on the previous legislation are now entirely redundant. Whether one

looks at the Act or the previous decisions under the 1976 Act one looks in vain

to find a requirement of absolute or strict liability. It is my view that the

Board, knowing that the circumstances of the application amount to a single

failed test purchase to a young person due to fault on the part of the pursuers'

employee erroneously found the ground of review established by virtue of the

relevance to protection of children. There is no criticism whatsoever of the

pursuers' system of training which was plainly more than adequate however

the Board manage to contradict themselves in the course of their decision by

conflating the error on the part of the employee with a failure on the part of

the pursuers to ensure or prevent the sales of alcohol to under 18s. In the

absence of any other reason this can only be the application of a strict

liability test. Based on the uncontroversial evidence before the Board they

were not entitled to find that a ground relevant to the statutory licensing

objective of protecting children from harm was engaged. This is especially so

as the failed test purchase related to a young person rather than a child.

65. It appears to me that the defenders have exercised their discretion

unreasonably by seeking to impose a regime which infers strict liability in the

event of a failed test purchase. That in essence means the closing of the

Board's mind to the whole circumstances of the application before them. The

weighing up of all relevant factors is the essential function of any decision

making body. Reasons given by the Board in the present case indicate a

failure on the part of the Board to have regard to all relevant factors and give

them appropriate weight. This decision gives undue weight to the fact of a

failed test purchase due to "inexplicable human error" and a lack of weight to

the compelling facts which points to the pursuers' active and positive

endorsement of their obligations under the legislation and guidance. They fail

to take account of the Pursuers support of the objectives of protecting children

from harm and the management of or minimising of the risk or opportunity for

sale of alcohol to under aged persons. It is important to record that it was

accepted that the Pursuers had very high volume annual sales of alcohol and

no other instances of sales of alcohol to under age persons at these premises.

38

In my view the defenders thereby fell into error in the exercise of discretion

and in so far as there were no proper basis articulated for holding that a

ground of review had been established.”

She went on to consider the question of proportionality. Along the way she suggested

that a Board if it wishes to suspend should “suspend the suspension” pending an

appeal being lodged. This is the first case in which this has been suggested and raises

another matter for Clerks and Boards to consider. On one view it cuts across the

apparently clear terms of the statute and her approach may be open to doubt. She

said:-

“66. Lest I be wrong in my view of the principal grounds of appeal I will now

consider the next part or step of the test which the defenders required to

address. That is having taken the view that the ground of review was

established the Board had to consider whether it was "necessary or

appropriate" for the purposes of the licensing objectives of protecting

children from harm to take any of the steps laid down in section 39(2).

67. It is therefore necessary to look at the reasons given by the Board and these

again can be found at section 10A (penultimate page of the reasons). What I

have said about the application of a strict liability rule is equally relevant to

this question. The Board state that the occurrence of a failed test purchase

points to a defect in the Pursuers policies and procedures .The Board go on to

state that the policies and procedures should be adequate to prevent the test

purchase having been failed. They conclude that the failed test purchase in

itself highlights the failure of the pursuers' procedures. Of course, this has

been set in the context that the Board know, only too well, that the failure is a

failure on the part of the employee and not inevitably a failure of the system.

The words of the Board in this section also make it clear that they are looking

for elimination of risk or strict liability. Finally, the Board consider it

necessary and appropriate to take one of the steps "in order to prevent a

recurrence".

68. The Board then proceed to consider the steps which" may" be taken by them but

steps that they are not obliged to do to take. To prevent a recurrence they

39

decide that a short period of suspension is necessary and appropriate. This

will also promote the licensing objective of protecting children from harm.

69. This in my view discloses further confusion and error on the part of the Board.

It is indeed difficult to see how a short period of suspension would prevent a

recurrence other than for that very short period. Accordingly, it is difficult to

see how a short period of suspension would prevent a recurrence. A short

period of suspension will undoubtedly be a penalty for the pursuers. They are

involved in a significant number of alcohol transactions on a daily and weekly

basis. The loss of trading in alcohol over the weekend prior to Christmas

would enhance the penalty. It would also inconvenience and in effect penalise

the customers of the pursuers who would be denied an opportunity of buying

all their requirements in respect of both food and alcohol on the same

premises. The steps available to any Licensing Board in terms of section 39 of

the Act do not include the power to impose a financial penalty however the

suspension of a premises licence would clearly restrict the ability of the

pursuers to trade over the period of the suspension. This would, in effect, be a

significant financial penalty.

70. Having regard to the reasons given by the Board and accepting entirely that the

Board enjoys a wide discretion it appears to me that it is a decision which

discloses a further error in the reasoning of the Board.”

71. The defenders in their answers to the Initial Writ state: "The defenders were

entitled in the exercise of their discretion to take action to deter both the

licence holder concerned and others from acting in a way that harmed the

licensing objective of protecting children from harm. Such action promotes

the licensing objective, as the defenders are obliged to do. Deterrence is a

relevant consideration for the defenders in deciding what was necessary or

appropriate for the purpose of promoting the licensing objective of protecting

children from harm. It serves to remind and reinforce with licensing holders

the importance of maintaining high standards and the possible consequences

of a failure to adhere to them."

72. Of course this defence does not square with the reasons given by the Board. It

is however proper to consider the matter of deterrence. I find myself returning

to the fundamental difficulty for the defenders in this case - namely - that they

have no basis on which to suggest that there is any ongoing problem with the

40

premises; that there was any likelihood of further sales of alcohol to persons

under age; that there was anything other than a good training regime.

Standing these uncontroversial propositions it is difficult to know what the

purpose of deterrence was or what the pursuers had to be deterred from

doing. - From hiring staff who do not possess a reasonable level of

intelligence and common sense; who do not have lapses of concentration and

make careless errors; who are not malicious or mischievous? It would be

quite absurd to make these suggestions however it is not easy to discern the

purpose. On the other hand, where appropriate a suspension may deter other

licence holders in the event of there being a clear and identifiable problem of

sales to under age persons in a particular area. This however did not form

part of the reasons and clearly in the circumstances of this case could not

form part of the reasons.

72. Accordingly, I would agree with the submission made on behalf of the pursuers

that it would be difficult to envisage when it would not be necessary to

suspend if suspension is necessary in the circumstances of this case.

73. In the circumstances it is difficult to avoid the conclusion that the Board again

fell into error when considering this part of the test. Likewise, it is difficult to

avoid the conclusion that suspension was also disproportionate in the whole

circumstances for the reasons I have already given. Suspension was indeed

punitive and if that is the purpose of the licensing legislation then no doubt

Parliament should have made that clear. If the aim is to protect children by

preventing a recurrence of the test purchase one would expect the Board to

have considered that it is necessary to encourage licence holders to remain

supportive of the licensing objectives and to continue to maintain high

standards of training. A warning as to the possible consequences in the event

of a sale to a child would have been effective.

74. The decision to impose a short period of suspension with immediate effect was

designed to achieve a variety of consequences for the pursuers. Firstly, the

suspension began on the Friday beginning one of the busiest weekends in

Christmas trading. It must have been clear to the defenders that the effect on

the pursuers would have been significant especially as trading at that time of

year is significantly busier than at other times. Secondly, the immediate

suspension of the licence had the effect of denying the pursuers the

41

opportunity to seek recall of the suspension prior to the suspension taking

effect. Recall of the suspension may be granted ad interim in terms of section

132(8) of the Act. Due to a combination of speed and diligence on the part of

the solicitors for the pursuers a hearing on the recall was arranged for 2pm

on 16 December 2011 and recall of the suspension ad interim was granted

prior to 3pm.

75. I find it difficult to understand why the defenders having made the decision that

it was necessary or appropriate to impose a short term suspension decided to

give immediate effect to the suspension bearing in mind that the failed test

purchase had occurred on 21 July 2011 and the application for review made

in October 2011. Where the need for such urgency arises is difficult to decern

against that timetable. Immediate implementation of suspensions, particularly

short term suspensions, creates a clear risk of denial of justice. Had the Board

met on a Friday it would be less likely that the suspension would have been

recalled ad interim or that there would have been a reasonable opportunity to

present a motion for recall before a suspension was served. It would have

been entirely academic to have heard any motion on recall on Monday 19

December 2011 as the suspension would have been served. I accept that there

may be instances where an immediate suspension of the licence is necessary

for the purpose of dealing with public protection and public order concerns,

however these issues were entirely absent in the present case and are likely to

be absent in a significant number of cases heard by the Board. The imposition

of an immediate suspension places the premises licence holder in a position

where he may be unable to avail himself of the remedy set down in the Act

whereby the Sheriff Principal may allow recall of the suspension or

revocation pending determination of the appeal. Furthermore, it appears to be

conducive to fairness and the proper administration of justice to allow

appellants an opportunity to make an application for recall with the benefit of

written reasons for the Board's decision. Clearly, the Act allows a party to

request written reasons and these will be provided on such a request. Section

39A deals with these matters. It would appear fair and reasonable that

consideration should be given to deferring the implementation of any short

term suspension variation or revocation until after the written statement of

reasons is available to the parties.

42

76. I consider that the decision to impose a short suspension of 48hrs following a

first failure due to error on the part of an employee who had been fully

trained and in the course of his employment in modern, well equipped and

properly run premises is indeed disproportionate. It must be the intention of

the legislation to encourage licence holders to run their enterprise in such a

way that is compatible with and supports the licensing objectives. The

pursuers run such an enterprise and it is my view that it is entirely

disproportionate that they should, in doing so, be harshly penalised due to

behaviour on the part of their staff which could be characterised in a number

of ways from carelessness or inattention to malicious or mischievous. This is

not to say that it would still be disproportionate if there were to be repetitions

of such failure due to staff negligence but certainly for a first default set

against what has been described as a gold standard in terms of training it

seems to me entirely disproportionate as it fails to promote any of the

licensing objectives as set out in the Act.

77. I propose to allow the appeal and quash the finding that a ground for review

had been established and quash the suspension.”

In Shafiq v. North Lanarkshire Licensing Board [2009] 42 SLLP 24, the Board used

the crime and disorder objective to refuse an application for an offsales only premises

licence on conversion from a 1976 offsales licence. I acted for Mrs Shafiq.

The appellant had been convicted of a vicarious sale to a test purchaser. This had been

the only fail. She pled guilty but did not take legal advice. The assistant was fined

£200. The appellant was admonished after a six month period for good behaviour (the

admonition postdated the date of the Board decision). The police referred this to the

Board as a relevant conviction but made no recommendation to refuse.

Sheriff Powrie held that the decision of the Board should be reversed and the licence

granted. The Board had erred in holding that there was “manifest irresponsibility” on

these facts. They had assumed there was a duty of insurance to avoid under-age sales.

They had attached too much weight to it being a test purchase. This did not, contrary

to the view of the Board. They make the failure any more serious than any other case

of under age sales. They had failed to recognise that the police did not recommend

43

refusal and had not given adequate reasons for taking a different view from the police.

They had not assessed whether there was a likelihood of recurrence and therefore

whether it was necessary to refuse the application as being inconsistent with the crime

prevention objective.

Crime and Disorder-Fairness of Board proceedings, evidence and onus of proof

A recent interesting case was Melville v. City of Glasgow Licensing Board 10 July

2012, a decision of Sheriff Reid at Glasgow Sheriff Court. There a public house

licence holder (M) appealed against a decision of the local licensing board (L)

suspending his premises licence for one week.

The Chief Constable of Strathclyde Police (C) had applied to L for a review of M's

licence in terms of the Licensing (Scotland) Act 2005 sections 36(1) and 36(3) (b),

alleging that M's employee had sold alcohol to customers 10 minutes before the

permitted opening time of 12.30 pm. M alleged that the attending police officers (P)

had entered the premises within the permitted hours, namely five minutes after the

opening time. Having heard submissions, but without hearing oral evidence, L

suspended M's licence. M appealed and the sheriff principal ad interim recalled L's

decision until further order of court.

The appeal was allowed, L's decision reversed and suspension recalled. L's statement

of reasons disclosed that it had failed to take due account of relevant evidence in

reaching its decision which constituted an error of law in terms of section 131(3) (a)

(i) of the 2005 Act. In reaching its conclusion, it had overlooked, disregarded or

otherwise failed to take account of three affidavits and two handwritten statements

exhibited at the review hearings, the mere acknowledgement in its statement that

these had been produced to the clerk, in the face of the subsequent explicit,

unqualified and unequivocal assertion that L was of the view that M had provided no

information or material to support his proposition that P had attended the premises

after 12.30 pm, was insufficient to indicate to an informed reader that the material had

been duly considered by L in its deliberations and decision making.

44

Even had L taken account of M's evidence, it had failed to give adequate reasons for

its decision: L's statement of reasons gave no insight into the reason for preferring C's

evidence, offered no explanation of, or discussion upon, the nature or quality or merits

of the conflicting evidence before it and made no comment on the source, form,

content or substance, or credibility or reliability of the conflicting material presented

to it.

It was appropriate, and in the interests of justice, that the court conclude the matter by

determining the merits of the review application itself, and in doing so it was neither

necessary nor appropriate to exercise its discretion to hear evidence where no motion

had been made for evidence to be heard, it was not suggested that either L or M had

suffered or would suffer any specific prejudice as a result thereof, the court required

to consider the nature and age of the allegation and the procedure followed to date in

an attempt to resolve it, and both M and C had been treated in a fair manner, with

equal and ample opportunity to consider, respond to, and vouch their respective

allegations.

Having considered, assessed and weighed the whole material presented to L, the

grounds for review had not been established. The onus of proving the key allegations

on the balance of probabilities to L's satisfaction lay with C, and no substantial error,

illogicality, irregularity, discrepancy, inconsistency, contradiction, ambiguity,

imprecision, incongruity or absurdity within the material or any other substantial

reason, ex facie or otherwise, could be detected to justify, on objective grounds,

preferring C's version over M's, and on the material, which was of a broadly

equivalent nature, form and quality, it could not be said which of the two

irreconcilably different accounts ought to be preferred, therefore, C had failed to

discharge the onus of proof incumbent upon him and the grounds for review had not

been established on the balance of probabilities.

The Sheriff also observed, that it could not be said that faced with a dispute on a

material factual issue, a licensing board could never properly prefer one version over

the other unless evidence was heard from witnesses, therefore if such evidence was

not heard a licensing board could never properly be satisfied that the ground for

review was established, as licensing boards would routinely be disabled from reaching

45

a decision on a review application merely by virtue of a denial of the applicant's

material factual allegations unless it then exercised its discretion to hear evidence to

resolve the conflict.

In addition he considered that although the present case turned on the issue of onus,

there might be other cases where, depending upon the circumstances, notwithstanding

the emergence of a dispute on a material issue of fact, that dispute might be capable of

being resolved by a licensing board without the necessity of hearing evidence from

witnesses; the value to be attached to the conflicting pieces of evidence remained a

matter for the board to assess as the decision maker, however, this function was

subject to an overriding requirement of natural justice.

He said that in certain cases, in order for natural justice to be met, it might be

appropriate for a licensing board to exercise its discretion to hear evidence, however,

the mere decision to proceed upon one type of material and not another would not of

itself indicate a failure to comply with natural justice, the necessity for evidence to be

heard in such cases would arise not merely from the fact that there was a factual

dispute but, rather, in order to afford a fair hearing to the disputed parties and to give

proper equality of treatment to each on the material disputed issues of fact.

Indeed he went on to say that a board might decide that the simplest and most

expeditious way to resolve a disputed issue of fact was to hear witness evidence rather

than to proceed any further on conflicting submissions or documents, but the board

would not be obliged to do so unless that was necessary to afford equality of

treatment to the parties or otherwise to achieve a fair hearing.

Ranachan v. Renfrewshire Council 1991 SLT 625, which was the main case relied

on for the Board in this context, was not read by the Sheriff as authority for the

proposition that a Board is simply entitled to state, without more, that one version of

events is to be preferred over another. Ranachan was more concerned with a

challenge to the reasoning on why the Committee considered Mr Ranachan not to be a

fit and proper person against the background of a particular set of facts which are

different from this case.

46

It was in the context of the finding that he was not fit and proper that the Inner House

made the well-known observation that a licensing committee does not need to set out

its precise reasoning or as it were, the reasons for the reasons. That was against a

background where it was accepted that there had been convictions involving Mr

Ranachan. Against the background of convictions for breach of the peace and assault

which could hardly be said to be irrelevant to the issue of whether the applicant was a

fit and proper person to be a taxi driver it is not difficult to see why the court

considered that that was a matter that could go to the fitness of Mr Ranachan without

the Committee saying much more than it did.

Here the very issue was whether there was an incident at all. In Ranachan there were

established convictions. Here the very issue was whether wrongdoing had been

established.

Ranachan is not therefore authority for the view that a licensing committee or Board

does not need to give reasons why it preferred one version over another. As Sheriff

Reid says, it may not need to give exhaustive reasons or detailed reasons but it does

also seem to me that Ranachan has to be read along with earlier case law such as

Wordie and the more recent case of Ritchie v Aberdeen City Council 2011 SC 570

in which the Second Division of the Inner House re-stated the test for adequacy of

reasons in a licensing context. The Lord Justice Clerk in giving the Opinion of the

Court said as follows (with emphasis added):-

“[11] In the now classic formulation of Lord President Emslie, the duty of the decision-maker in a case of this kind is

‘to give proper and adequate reasons for [the] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it’

( Wordie Property Co Ltd v Secretary of State for Scotland , pp 347, 348; cf Mirza v City of Glasgow Licensing Board , Lord Justice-Clerk Ross, p 457C-D). A consideration is material, in my opinion, if the decision-maker decides that it is one that ought to be taken into account. The court may of course interfere if he perversely disregards a consideration that in the view of the court is manifestly material.

47

[12] The decision-maker, having taken a particular consideration into account, may in the event decide that other considerations outweigh it. Such a consideration, being thus outweighed, is not a determining consideration; but it is material nonetheless because it has formed part of the decision-making process. In fulfilling his duty to give proper and adequate reasons, the decision-maker need not engage in an elaborate and detailed evaluation of each and every point that has arisen at the hearing. But his statement of reasons must identify what he decided to be the material considerations; must clearly and concisely set out his evaluation of them; and must set out the essence of the reasoning that has led him to his decision.

[13] The general principles governing the matter are well established; but in every case the validity of the decision complained of must turn on the wording of the statement of reasons.”

Here the Board did not set out what the material considerations it had regard to in

reaching the view that the police position should be preferred. There was no

evaluation of the evidence or evidence of any reasoning process that led to the view

that the police position should be preferred.

The “essence of the reasoning” in the present case was missing. The Board did not set

out why it preferred the police version to that of the operator. It stated a conclusion

but provided no real reason as to why that conclusion was reached.

Each case will inevitably depend on its own facts and circumstances and the level of

reasoning required will vary. Some cases might turn on credibility or reliability, other

cases on plausibility or likelihood. Other evidential considerations could no doubt be

suggested. The Note from Sheriff Reid does a good job of that. A licensing committee

may not have to say much, but it has to say something.

Had this been a case where the incident had been accepted as having occurred then

short Ranachan style reasons may well have sufficed as there would have been prima

facie a breach of the licensing law which could give rise to an inconsistency with an

objective. A Board would just need to link the incident to a licensing objective which

met the “Brightcrew” issue-in what way was the incident relevant to liquor

licensing? If it did the Board would then go on to reason out what penalty or step it

decided to impose against the background of the circumstances before it.

48

Even so this is a somewhat unusual case. It is very rare to have a licensing case

where there is such a sharp dispute on the facts and where there is no obvious basis

upon which one version of events should be preferred over another.

In this case it is difficult to discern an objective basis for preferring the evidence of

the police to that of the civilians. He makes the point that the onus of establishing a

prima facie ground for review is for the person bring the application.

The case should not in my view be regarded as setting a precedent which could cause

general difficulty for Boards in the future. Facts will rarely be as sharply disputed.

There will usually be a rational basis for coming to a view one way or the other on

onus. Things will rarely be as finely balanced.

As Sheriff Reid very helpfully points out in his Note, it will often, if not almost

generally be the case, that a Board will be able to resolve competing versions of

events without hearing evidence. There is nothing in the 2005 Act which suggests

that the hearing of evidence is likely to be any more common than it was under the

1976 Act.

If of course in a particular case an agent makes a motion for the hearing of evidence

the Board would have to at least consider that and make a decision on that. Every

case depends on its own facts and circumstances of course and the guiding principle

must be that set out in JAE (Glasgow) Limited v. City of Glasgow Licensing Board

1994 SC 290, namely has there been equality of opportunity?

In that regard the cases to date suggest that equality of opportunity does not mean that

oral evidence must be used and provided parties are treated equally in that respect a

Board is entitled to rely on any material which has a logical bearing on the issues in

the case. Plainly if a Board allowed one party to lead oral evidence and denied it to

another that would be wrong. It would probably (although it is arguably less clear cut)

also be wrong if in allowing oral evidence it did not permit the other party to question

witness led by the other side. This is because there would be no equality of

opportunity.

49

If, on the contrary an agent does not make a motion to hear evidence then it does not

seem to me that a Board is actively obliged to consider whether they should do so

anyway.

There may of course be some cases – and the present one may be a rare example of

that – where a Board may feel that it cannot determine an application unless it hears

additional evidence, including oral evidence. Indeed , no doubt because of concerns

over the apparent conflict in the evidence, in the present case the Board adjourned the

hearing to allow an opportunity to be extended to see if further evidence could be

obtained. That would however be a matter for the Board to consider in the exercise of

the discretion and judgment open to it if it considered that it would help it reach a

view on whether the onus was met one way or the other. This is quite different from

accepting that parties have a right to lead oral evidence. Parties do not have a right to

insist on oral evidence.

The present case is an example where on the evidence that was before the Board the

Sheriff came to the view that it was not possible to rationally distinguish the evidence

of the police from the other witnesses and where the onus lay on the police to

establish their case, that meant the application had to fail as a matter of onus.

The case is perhaps a reminder to Boards that in approaching the question of review

that there is a basic onus on the party making the application for review to show that

the grounds for review are made out. Whereas here, it is difficult to see that onus as

having been discharged, then the Board would have the option of calling for further

enquiries (a course contemplated by the Sheriff) or determining the application on the

material as it stood.

Whether further enquiries would require oral evidence must necessarily depend on

individual facts and circumstances and the cases to date do not suggest that a Board

must hear oral evidence because it is asked to do that. What matters is equality of

opportunity.

Plainly if here the police had been able to produce objective evidence establishing the

time at which the officers entered the premises e.g. by records from the police control

50

room (a course suggested by the police inspector but not apparently done), then that

may have tipped the balance in favour of the police version of events without the need

for oral evidence to resolve matters.

The lesson that might be learned from this case is that if the police are to visit

premises to check if drinking is taking place out with licensing hours that there be a

more reliable system in place for determining time other than relying on the officers

recollection of the time and here the officers did not even produce their notebooks

which was not helpful. That is perhaps a matter for the police to address.

It therefore stress seems to me that this case is very much a decision on its own facts.

To some extent it echoes the earlier case of Hamid, 23 July 1999 (Glasgow Sheriff

Court, unreported) where there was a dispute as to the age of an alleged underage

purchaser. Although the point was not decided there were suggestions in that case

that where there was such a sharp dispute as to the facts a Board might have to hear

evidence to determine matters one way or the other. Of course in the typical underage

purchase case the age of the purchaser is rarely in dispute and is often conceded, any

defence resting on reasonable precautions and the like.

Helpfully, Sheriff Reid also makes the point that it will often be possible to make a

decision on whether the onus has been discharged on the basis of material other than

oral evidence. Is one version of events more likely than another as a matter of

plausibility? Is the material led by one party to support their case contradictory, either

externally or otherwise?

There are many ways of approaching evidence open to an administrative body.-more

so than a formal court which is constrained by the formal rules of evidence.

For example in the present case if a number of the statements produced by the

civilians have been contradictory of each other on a material matter then the Board

could rationally have held that this undermined their credibility and/or reliability, so

paving the way to prefer the police version of events.

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On whether evidence must be heard as a matter of legal duty, the matter is not one of

duty, but discretion. A Board has a choice of options open to it.

Indeed the decision of Sheriff Reid should in my view be regarded as helpful in

relation to the evidence point as he does go out of his way to emphasise that the

leading of evidence could be a rare course and that most cases could be resolved

without evidence being led. Earlier cases such as JAE do not rule out the possibility

that there may be cases in which the Board might have to consider that evidence be

led, not least where a specific request is made. However JAE makes it clear that there

is no right to insist on oral evidence. What matters is equality of opportunity as

between the competing positions of the parties and that the Board provides equality of

opportunity.

It has never been Scottish licensing law that it will be unfair to hear a case without

oral evidence being led. The primary obligation in that regard must lie with the party

who suggests that evidence would be appropriate. Equally it has always been the law

that what matters is equality of opportunity.

Sheriff Reid emphasises in his Note that the Act does not contemplate that evidence

will be a regular feature of licensing board hearings given their summary nature.

It should also be noted that in Devana 1992 SCLR 616 relied on by Brunton Miller in

the Melville case was not approved in JAE and there is no current argument under the

ECHR (Article 6 right to a fair hearing) that could be used to justify the leading of

evidence. That was considered at some length in the earlier case of Catscratch

Limited (No2) v. City of Glasgow Licensing Board, 2002 SLT 503 where the Court

rejected any notion that Article 6 imposed any different duty on a Board than common

law when it came to the hearing of evidence.

One should also not lose sight of the fact that it is primarily for the party who

considers that evidence should be led to make a case that evidence should be led. It is

not for the Board to go down that route as a matter of course.

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Review hearings are essentially adversarial and although the Board has a role which

it discharges in the public interest, it is not for the Board to keep under active review

whether evidence ought to be led. Parties need to consider their evidential position

before coming to the Board and make their arguments accordingly.

It does seem that in a number of cases the police can fall down by relying on fairly

limited material to establish a review and in this case it may be a useful reminder to

them that they may have to “up their game”.

The issue in this case was an odd one with a sharply disputed question of fact which

as Sheriff Reid correctly identifies could not be readily determined one way or the

other. In the vast majority, if not almost all reviews, the material before the Board

will allow it to make a rational choice as to which version is to be preferred. Again

that limits the scope of Sheriff Reid’s decision to very much its own facts.

Interim recall of suspension and revocation

Under the old Act when a licence was suspended, things were somewhat relaxed. A

statement of reasons would be sought and from receipt of those you would have a 2

week period to lodge an appeal. Usually some stateable ground could be identified to

justify a holding appeal or to allow matters to be sorted out such as by transfer to new

person. But all that has changed now. Under the new Act any decision to revoke or to

suspend is effective immediately by virtue of section 131(7).

That is in turn subject to section 131(8) which provides that where an appeal is taken

against a decision of a Board to suspend or revoke a premises licence, the Sheriff

Principal may, on the application of the applicant and, if satisfied on the balance of

convenience that it is appropriate to do so, recall the suspension or revocation pending

determination of the appeal.

In practical terms in many cases, this may be the most important of the appeal

provisions where there is a “live licence”, which has been reviewed, revoked or

suspended.

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It is vital that the client is properly and expertly represented at this stage. Because if

no interim relief is given a great many businesses may be unable to survive pending

the hearing of the full appeal.

This new provision presents potential problems e.g.:

(a) If a premises licence is revoked or suspended on a Friday afternoon

and could be closed over the weekend. Catastrophic for a busy city

centre pub or club.

(b) What if the Sheriff Principal is ill or on holiday or otherwise

indisposed? A delay even for a week or two may be the death knell for

a business again particularly in a city centre business where the

clientele will soon move on.

(c) The onus is on the appellant to persuade the Sheriff that the balance of

convenience favours interim recall. The Sheriff can only order recall

“if satisfied”. Presumably the strength or otherwise of the appeal will

be a factor to be taken into account in assessing where the balance of

convenience may lie. (Sheriff Principal Nicholson suggested that

merely an arguable case that was not frivolous would have to be shown

to succeed.

(d) the balance of convenience may favour the grant of an interim order

where there is no pressing public reason for closure.

(e) also if an attempt at recall was made prior to receipt of the statement of

reasons, and tried to anticipate the reasons for decision, there may be a

temptation (quite subconsciously and honestly) on the part of the

Board to adjust the statement of reasons accordingly. In appeals under

the Betting Gaming and Lotteries Acts where you have to lodge the

appeal against refusal before receipt of reasons the practice is often to

lodge a betting appeal in skeletal form for this reason. Note that there

is now an obligation for the Board to produce a statement of reasons

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for a review decision as a result of section 182 of the Criminal Justice

and Licensing (Scotland) Act 2010. Until this was introduced the only

reasons a Board would be obliged to give would be in the Stated Case-

see now section 39A (3) of the Licensing (Scotland) Act 2005.

(f) Also bear in mind that interim suspension only applies to a decision to

suspend or revoke a licence. One cannot seek suspension ad interim a

decision to impose a condition as the sanction in a review a decision or

a written warning.

Interim Suspension -the judicial response so far

Plainly the comments of the Sheriff Principal in the Tesco v. Midlothian Licensing

Board case are of interest. Should (can?) a Board suspend a suspension pending an

appeal and pending an application for interim recall?

There have not been any reported cases apart from this Tesco case. It suggests that

unless one is dealing with pressing public interest issues, interim recall will often be

permitted.

A case of the pressing kind is one in which I was involved. I acted for the Licensing

Board at Glasgow Sheriff Court before the Sheriff Principal on 10 July 2010. The

Sheriff Principal gave judgment from the bench and it is not yet clear if he will issue a

Note. This case was Kaya v. City of Glasgow Licensing Board.

Basically the facts in that case were that the Board suspended the licence for

entertainment style premises for a period of six months. There had been a series of

incidents involving fights between patrons and allegations of the failure of staff to

deal with them appropriately. The police complained about the failure of staff to

preserve crime scenes and there was some evidence that there had been underage

sales.

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The approach taken by the agent who appeared at the Board was pretty much “hands

up” although he stressed that the problems arose because of a previous staff team and

that a new staff team had been brought in. That did not persuade the Board.

A motion for interim recall of the order the Board was brought. The grounds of

appeal were bare, not least because the Board had yet to issue a Statement of Reasons.

In Glasgow however the Board maintains a transcript of the proceedings and this was

available to the Sheriff Principal.

After an argument which lasted most of the day he accepted that the appropriate test

was balance of convenience. In other words the prospects of success were a

consideration. Interestingly he seems to have placed less weight on the financial

impact of closure. I suppose he took the view that there will always be a financial

impact and that is a “given”.

In this case he was not satisfied that it could be said that prospects of success were

reasonable. In fact in his view they were poor.

He appears to have been influenced by the fact that there were no factual matters in

dispute between the parties and that the circumstances disclosed a serious public order

problem. He placed weight on the fact that the Board is best placed as an expert body

in the assessment of such problems in licensed premises to take a decision in the

public interest. His view seems to have been that this should be respected unless there

is a reasonable basis for overturning the Board’s decision in the interim. He was not

persuaded that because there were other options open to the Board short of a six

month suspension, that the decision to suspend for six months was disproportionate. I

will come back to that point later.

Plainly each case will be fact sensitive. It will be easier to defend a Board’s decision

where there is a question of serious disorder, perhaps less so where the allegations

relate to one or two allegations of underage sale. Plainly where the facts have been

vigorously contested before the Board the court might be more minded to grant

interim recall than in a case where the facts are not seriously in dispute.

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For those Boards who do not use a transcript it might be difficult to convey to the

court what the reasons for the decision are likely to be. In that regard in recall cases

some Boards might wish to give thought to providing a Statement of Reasons as a

matter of urgency. That can present some difficulty of course, not least because in a

heavy or complicated case the reasons might be quite detailed.

There is a full discussion of the Kaya case in Issue 46 of SLLP by Paul Romano, who

instructed me in that case.

It is of course the case that as a result of an amendment under the Criminal Justice and

Licensing (Scotland) Act 2010 that a Board will now be under a duty to provide

reasons for the decision following a review hearing. This will mean that in the future

in a case like Kaya there might be some prospect that at the time the interim hearing

takes place the Board might have issued its reasons.

BUZZWORKS AND TWO TRIPS TO TESCO-OVERPROVISION CLARIFIED?

In Tesco Stores Limited v. Aberdeen City Licensing Board, 24 June 2010, the

appellants applied under sections 20 and 45 of the Act for a provisional premises

licence in respect of premises in North Deeside Road, Cults, Aberdeen. The premises

were to be operated as a small "Tesco Express" supermarket, and it was proposed that

alcohol should be sold for consumption off the premises only. In addition, according

to the operating plan which accompanied the application, the premises were to be

used for the "sale of food, non-food items and other household goods and the

provision of ancillary consumer services within and outwith licensed hours". Again

according to this plan it was indicated that the alcohol display area would extend to

27.94 square metres. There was one objection from another local trader based on

overprovision concerns.

The application was refused under section 23(5) (e) because-

“In considering overprovision, the Board relied on the guidance contained in paragraphs 58 to 60 of the Scottish Government's Guidance for Licensing Boards and Local Authorities. These paragraphs explain how a Board should assess overprovision during the transition period.

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 With regard to the definition of a locality which could be used in assessing overprovision for Cults, both the applicant and objector accepted that only premises with an off consumption (sic) capacity should be taken into account. They also agreed with the Board that the suburban village of Cults itself should be the locality. The Board considered the question of the type and capacity of the premises as it was aware that the assessment of overprovision was no longer 'purely an arithmetical exercise'. The Board was aware of its Statement of Licensing Policy where it had indicated that it would look at the "type ... and capacity" of the premises in a locality. In that policy statement it was explained that the Board would also consider the 'particular descriptions' of premises and the 'distinct styles of operating' when assessing which premises would count in an overprovision assessment in a given locality. The relevant premises to be taken into account in the assessment of overprovision were those premises in the locality which sold alcohol for off-consumption only. These premises were: Kelly of Cults (capacity 30m2); Cults Store (capacity 10.69m2); Happy Uncle (capacity 7.6m2); and Oddbins (capacity 82m2). That gave a total capacity for the locality of 130.29m2. Board Members noted that the addition of 27.94m2 would equate to a 21% increase in the capacity. Some Board Members considered this to be a significant increase in the overall capacity of premises of this type in the locality.  The Board concluded that it should balance "type, capacity and number" when considering overprovision. However, although the Members were aware that some of these premises operated differently from the proposed premises, the Members who voted against the application were convinced the number and capacity of premises outweighed consideration of type of premises when reaching their decision. The Board therefore decided, on the evidence available before it, that the addition of the applicant's premises would lead to overprovision.”

 This was the subject of criticism by the appellants, a line which found favour with the

Sheriff Principal. The case makes it clear that sustainable reasoning in an

overprovision case will be somewhat more involved than in a 1976 Act refusal based

on overprovision.

Those criticisms were as follows-

“[12] The Dean of Faculty submitted that much of the difficulty in the present case stemmed from the Board's use of the term "type" or "type of premises". It was clear that this term had not been employed consistently or logically by the Board. It was not a term which appeared either in the Act or the Government's guidance to the Act. But it did appear in the Board's own policy statement, and this might be the source of the confusion which had infected the Board's analysis and reasoning. Referring to the

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statement of reasons, the Dean of Faculty pointed out that no indication had been given in this as to whether the Board, in refusing the application, had relied on paragraph (i) or (ii) of section 23(5)(e) and it was only in the stated case itself that it had become apparent that the Board had relied on paragraph (ii). The Dean of Faculty drew attention to the proposition in the statement of reasons that the addition of 27.94 square metres in respect of the appellants' premises would equate to a 21% increase in the capacity in the locality. He submitted that this was meaningless in itself since it depended upon what the Board's view was of the starting point upon the basis of which the percentage increase had been calculated. The object of the Act was not to restrict trade or to impose an artificial limit on the number of licensed premises in a particular area. On the contrary, in deciding the issue of overprovision the Board required to have regard to the licensing objectives set out in section 4 of the Act. Moreover, under paragraph (ii) of section 23(5)(e) the Board required to have regard to licensed premises of the same or similar description as the subject premises. The Board had wrongly assumed that all off consumption premises could be regarded as having a particular description. And even if this was correct, this could not justify the statement in the final paragraph of the statement of reasons to the effect that the members who had "voted against the application had been convinced that the number and capacity of premises outweighed consideration of type of premises when reaching their decision". Consideration of the type of premises was the very matter that they should have had in mind under paragraph (ii). In addition, in the same paragraph it had been said that the members were aware that some of premises in question operated differently from the appellants' premises. This would not have mattered if the application had been refused under paragraph (i). But, since the Board had proceeded under paragraph (ii), those premises which operated differently should have been left out of account. [13] The Dean of Faculty further submitted that, in addressing the issue of overprovision under section 23(5)(e), the Board had to decide whether it would have regard to all licensed premises in terms of paragraph (i) or whether it would consider in terms of paragraph (ii) only those licensed premises which were of the same or similar description as the subject premises. If it decided to proceed under paragraph (ii), it then had to determine upon what basis other premises were to be adjudged to be of the same or similar description as the subject premises and, having done so, it had to identify those premises in the locality which were of the same or similar description as the subject premises. At the same time, if proceeding under paragraph (ii), it had to leave out of account those premises which were not of the same or similar description as the subject premises. And, having identified those premises which were of the same or similar description as the subject premises, the Board had to determine whether granting additional capacity in respect of these premises would result in overprovision having regard to the licensing objectives set out in section 4 of the Act. This the Board had not done. It had thus erred in law, and in any event it had failed to provide proper and adequate reasons for its decision and, in so far as it was possible at all to discern what these reasons were, it had exercised its discretion in an unreasonable manner. [14] Referring to section 131(5) of the Act, the Dean of Faculty submitted that, if this had merely been a case of the Board having failed to state adequate reasons for its decision, it might have been appropriate to remit the case back to the Board for reconsideration of its decision. But here the Board had erred in law. Under section

59

23(4)(a) of the Act it had been obliged to grant the application unless there had existed a relevant ground for refusing it. No such ground having been identified by the Board, the appeal should be sustained and the case remitted to the Board with a direction that it should grant the licence for which the appellants had applied.”

What swung it for the appellants was the following. The Sheriff Principal held-

[16] In my opinion the submissions for the appellants are to be preferred. Having opted to proceed under paragraph (ii) of section 23(5)(e), what the Board had to do was to identify firstly those premises in the locality (in this case Cults) which were of the same or similar description as the premises which were the subject of the present application. It then had to have regard to the number and capacity of these premises. For present purposes (and without expressing a concluded opinion on the point) I am prepared to assume that the Board was entitled to regard all the existing premises in the locality which were licensed for the sale of alcohol for consumption off the premises (that is, off consumption premises) as being of the same or similar description as the subject premises. It is clear from the Board's statement of reasons that it duly identified these existing premises and it evidently had regard to the number and capacity of them. On the assumption stated, so far so good. What the Board then had to do was to consider whether, if the application were to be granted, there would as a result be overprovision of licensed premises of that description in the locality. In so doing it had to have regard to the licensing objectives set out in section 4 of the Act. So far as I can judge, it did not do this. On the contrary, it does not appear from either the statement of reasons or the elaboration of these in the stated case that the Board had any regard at all to the licensing objectives as it ought to have done. Instead it simply concluded, without reference to these objectives, that the addition of the 27.94 square metres attributable to the appellants' premises, equating as it did to a 21% increase in the capacity of off consumption premises in the locality, would constitute a significant increase in the overall capacity of premises of this type in the locality and hence that the addition of the appellants' premises would lead to overprovision. It might have been a different matter if it had been explained, for example, that to have granted the present application would have resulted in a number and capacity of off consumption premises in the locality of Cults which would in turn have created a risk of public nuisance or harm to children - see paragraphs (c) and (e) of section 4(1) of the Act. But nothing of this kind is said in either the Board's statement of reasons or the elaboration of these in the stated case. It follows in my opinion that the Board fell into error with the result that this appeal must be allowed.”

This is by no means as clearcut as it might first appear.

There is another case from the Court of Session one judicial review of a decision of a

Board to grant a premises licence for a “superpub”. This is Buzzworks Ltd v. South

Ayrshire Licensing Board and JD Wetherspoon plc [2011] CSOH 146, 2012 SLT

442, Temporary Judge Wise QC.

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There the Board considered that as it could not hold that the application would be

inconsistent with the licensing objectives there could not be a refusal based on

overprovision. That approach followed their reading of the Tesco case and what the

Sheriff Principal said about the objectives. One of the challenges brought is that a

Board is still entitled to refuse on overprovision grounds whether or not there is

inconsistency with the objectives-otherwise what is the point of having a separate

basis for refusal based on overprovision? Absent inconsistency with objectives a

refusal on overprovision grounds might be harder to justify but it is an arguable error

of law for a Board to fail to consider whether overprovision arises even if it cannot be

satisfied that there would be inconsistency. The case might also clarify just how

quickly an objector lacking appeal rights must act before bringing a judicial review.

One of the arguments brought by JD Wetherspoon is that the petitioners waiting too

long to bring the challenge and were barred by mora, taciturnity and acquiescence.

In summary the decision of the Court was that:-

“In essence, the Board considered that it had no power to refuse the application on

grounds of overprovision because it had found that the application was not

inconsistent with any of the licensing objectives. In my view, this constituted a clear

error in approach in that overprovision ought to have been considered as a distinct

ground regardless of the decision on consistency with the licensing objectives.

[para. 40, bold emphasis added]”

Further in relation to the decision in the Tesco case the Judge said-

“In my view any decision that ignores consistency with the licensing objectives is

likely to be open to challenge and to that extent I would agree with the Board's

decision in Tesco was flawed. However, insofar as the decision of the Sheriff

Principal suggests that consideration of overprovision and the licensing objectives

are part of a single exercise when making a determination under section 23(5) I am of

the view that such an approach is incorrect. As indicated, I am of the view that a

Board requires to consider separately and decide upon each relevant ground for

refusal. This will invariably require consideration of whether an application is

consistent or inconsistent with the licensing objectives. To the extent that the

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decision in Tesco Stores Ltd related to a failure to consider the licensing objectives

at all, it seems to me it had no real bearing on the decision to be taken by the Board

in this case. Insofar as it was regarded as imposing a rule that, if the application

was not inconsistent with any of the licensing objectives, overprovision was

irrelevant, such an interpretation of the legislation is in my view wrong. In short,

the Board in this case was wrong to consider that it had no power to refuse the

application on the grounds of overprovision because it had not found any

inconsistency with the licensing objectives. It is that clear error in interpretation of

the provisions governing determination of an application that has convinced me that

the decision cannot stand, quite apart from the conclusion I have reached on

inadequacy of reasons given. There is no question of overprovision, unsuitability of

premises or any of the other grounds being subsets of some over-arching ground for

refusal of inconsistency with the licensing objectives. Were it so, the legislation would

have been differently drafted and would have included overprovision and unsuitability

within the factors to be taken into account in considering inconsistency with the

licensing objectives.”

It follows that an application might not be inconsistent with the licensing

objectives. All that means is that it cannot be refused under Section 23(5) (c). It does

not follow that it cannot be refused on grounds of overprovision regardless of whether

the application meets Section 23(5) (c).

For example there may be an issue which is not relevant to the objectives but may still

be relevant to overprovision because of the impact of the proposal. For example

premises might give rise to an impact on the amenity of residents even if the impact

falls short of public nuisance for the purpose of the licensing objectives. Premises

might give rise to noise or other complaint which is not enough to be a nuisance so as

to engage the objectives but which is still undesirable and for example causes

residents to experience an impact on their amenity such as where revellers cause sleep

disturbance to residents or where the sheer scale of the proposed operation could

impact on the general amenity of those living and working in the locality. Impact on

amenity was recognised in earlier cases as being relevant to overprovision (for

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example by the House of Lords in Caledonian Nightclubs Ltd v. City of Glasgow

Licensing Board 1996 SC (HL) 29).

Likewise there could well be situations where there is not yet a sufficient level as to

lead to inconsistency with the licensing objectives but there might still a licensing

objective issue relevant to overprovision. This could arise as for example where it

might not be possible to say that the grant of an application would be inconsistent

with the protection or improvement of public health, but that nevertheless the refusal

of an application would, on grounds of overprovision, still promote the protection or

improvement of public health.

Finally over time the premises may have a detrimental impact on the licensing

objectives even if (and which is not the case in any event) there is no immediate

inconsistency with the objectives. There is a real risk they will be eroded over time.

That is a consequence that is reasonably predictable now and overprovision can deal

with that. It serves to exist as a safeguard against the grant of a licence for premises

which might not be inconsistent with the objectives at the time the application is

granted but which will, over time, lead to deterioration in the maintenance of the

objectives.

In addition the judgment of the Court of Session makes it clear that event if there are

no objections or there are objections which do not cover all of the grounds for refusal

the Board still has to consider if the application should be granted. Reference is made

to paragraph [39] of the judgment-

“[39] It seems to me to be clear, having regard to the way in which the statutory

provisions are expressed, that the correct approach for the Board to take in

considering an application is to consider each of the grounds for refusal in turn and

decide whether anyone of them applies. If it is satisfied that any one of them applies,

the application must be refused.”

Accordingly it would be open to the Board to consider all of the possible potentially

relevant grounds for refusal including for example whether the nature of the activities,

character, location or condition of the persons who will frequent them leads to the

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view that the premises are unsuitable under Section 23(5)(d). So for example if the

Board had a concern as to the presence of children in premises which might be seen as

a “superpub”, it might wish to consider that point whether or not if featured in any of

the objections that might be made.

There are aspects of overprovision which Buzzworks does not deal with as the

decision turned on a fairly short point of statutory interpretation. I would suggest that

the following points are worth considering as future possible issues for consideration.

The Scottish Executive Guidance does not in fact use the test of inconsistency at all

when it considers overprovision. This is consistent with the approach of the Court.

Inconsistency and overprovision are separate matters. Instead it mentions “impact”

on the “promotion” of the licensing objectives and how that impact could vary

depending on the nature of the proposed operation.

Further it talks about someone who wishes to secure a licence which would be

outwith policy having to show that their case is exceptional and that: –

“Each application still requires to be determined on its own merits and there may be

exceptional cases in which an applicant is able to demonstrate that grant of the

application would not undermine the licensing objectives…”

The approach suggested by the Guidance is not whether one has to show that an

application would not be inconsistent with the objectives before it could be granted

outwith policy, but whether the grant would undermine the licensing objectives.

Again it would be odd if the test was inconsistency as that would be a separate basis

for refusal anyway.

Making the reasonable assumption that in a case where there is no overprovision

policy which states that there is a state of overprovision that it is for the objector to

establish a case of overprovision, then if the objectives are relevant at all, the issue is

not one of inconsistency with objectives but rather whether the grant of the

application would undermine the objectives.

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There might be a difference between a test of inconsistency and a test of undermining.

“Undermining” suggests a view which tends towards recognising that it may be only

over time that it can be seen that objectives will be undermined by the grant of a new

licence.

“Inconsistency” suggests something tends towards that which is capable of being

determined as being apparent as at the date of the hearing.

The Scottish Executive Policy Memorandum which went along with the Licensing

(Scotland) Bill said this:-

“ Overprovision

47. Overprovision can be the root of problems being experienced by many communities where there has in the past been no coherent overall policy in place. Overprovision in a “locality”, whether this is a street, several streets or a Council ward, can lead to an increased level of problems associated with misuse of alcohol. This may take the form of nuisance issues such as noise and broken glass in the street, intimidation by those entering or exiting licensed premises or increased violence and crime. Licensing Boards would now be able to block new licences in areas which they consider to be at or beyond saturation point to ensure that the potential for these undesirable consequences is limited.”

It seems to me that this captures what section 23(5) is meant to be about. Often in the

past growing outlet density has generated problems which the old style approach to

overprovision could not tackle. Where the number and size of premises increased over

time it might not be possible to put the blame for any associated nuisance or disorder

problems on any one premises. Even so there must be a case to say that the

cumulative effect of more and more licences being granted will have an effect on life

in that area even if one could not lay the blame on an existing operator or suggest that

a new operator would in themselves cause further problems. It is this potential for

undesirable consequences which has to be tackled via overprovision.

That potential can be viewed on a cumulative basis. The potential for undesirable

consequences is arguably different from whether in fact in an instant case a licensing

authority can be satisfied that in fact an application if granted would be likely to lead

to adverse consequences. It might be thought that potential is concerned more with

65

questions of “risk/ possibility/undermining/impact” having regard to numbers and

capacity rather than the likelihood of actual inconsistency.

One can perhaps see that in a case where on examining an individual premises licence

application it can be readily seen that the licensing objectives will be breached. An

operator who intends to provide a large high energy dance music venue aimed at the

18 to 21 market in a quiet suburb next to a secondary school and opening during the

afternoon and evenings might be seen as facing obvious problems in showing that the

premises would meet several of the objectives. An actual inconsistency can be readily

apprehended without much difficulty.

By contrast in an overprovision case the adverse consequences of a grant may not be

immediately apparent. They might be experienced over time. They might be

experienced some distance away from the new premises. The premises themselves

might be well run but because they attract a considerable number of patrons who

might create disorder or nuisance some way away from the premises. The case law

already recognises that just because premises are well run it does not follow that they will not

be capable of generating nuisance-see eg Surrey Heath Council v. McDonalds Restaurants

Ltd [1990] 3 LR 21; Lidster v. Owen [1983] 1 All ER 1912. Indeed the Scottish Executive

Guidance recognises that when considering over provision policy that-

“The Licensing Board should not take into account:

the manner in which individual premises in a locality are managed, since it is possible that well-managed premises may act as a magnet for anti-social behaviour, or may eject a substantial number of customers who collectively produce disorder and nuisance to a degree which is unacceptable;”

This view that the negative consequences of overprovision may be indirect and felt

some way from the premises and may not be attributable to particular premises seems

also to be the concern in the English Guidance-

“ In some areas, where the number, type and density of premises selling alcohol for

consumption on the premises are unusual, serious problems of nuisance and disorder may be

arising or have begun to arise outside or some distance from licensed premises. For example,

concentrations of young drinkers can result in queues at fast food outlets and for public

transport. Queuing in turn may be leading to conflict, disorder and anti-social behaviour.

66

While more flexible licensing hours may reduce this impact by allowing a more gradual

dispersal of customers from premises, it is possible that the impact on surrounding areas of

the behaviour of the customers of all premises taken together will still be greater in these

cases than the impact of customers of individual premises. These conditions are more likely

to occur in town and city centres, but may also arise in other urban centres and the suburbs.”

Again this suggests that underlying overprovision is the concern not just with whether the

grant of a particular licence but with whether this will add to problems in the area as a whole.

This also seems to me to be reflected in the Scottish Executive Guidance which also

talks about the new approach to overprovision as one which :–

“recognises that halting the growth of licensed premises in localities is not intended

to restrict trade but may be required to preserve public order, protect the amenity of

local communities, and mitigate the adverse health effects of increased alcohol

consumption resulting from growing outlet density.”

It is in my view arguable that what a Board has to do is consider the likely impact on

an area if a licence is granted. It may be that in some cases they can see an

inconsistency. However in my view it is not necessary to approach matters with this

test in view. Something less than inconsistency will suffice.

If a Board considers there is at least potential for or a reasonable basis for concluding

that there will be a risk of adverse impact on the objectives or of an undermining of

them, having regard to the size and capacity of the existing and proposed premises it

can come to the view that there is a state of overprovision. It might be of note that at

paragraph [16] of the Tesco case the Sheriff Principal referred as an example of

“having regard” to the objectives in an overprovision case as the example of “a risk of

public nuisance or harm to children”. He did not use a test of inconsistency. He had

in view questions of the potential for harm.

Some of these issues were clarified in a recent case in which I acted as junior counsel

for the Board, Tesco Stores Ltd v. City of Glasgow Licensing Board, 15th October

2012. This was argued before Sheriff Ross at Glasgow in September.

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Tesco were refused a licence for a Tesco Express shop in Govanhill. This was not an

overprovided area in terms of Board policy. However the Board decided on the merits

of the case that there would be overprovision. It referred to their being other outlet in

the area which was an area of socio-economic challenge. The latter was based on the

local knowledge of the Board. The Board decided there would be a cumulative impact

on the objectives even if the Tesco store itself would not breach the objectives ie grant

would not be inconsistent with the objectives.

Represented by the Dean of Faculty and Robert Skinner, Advocate, Tesco argued that

their mode of operation was such that they should not be treated as equivalent to pure

off-sales but that comparison should be limited to other convenience stores. They also

argued that the Board had breached natural justice by referring to local knowledge

when that had not been an issue before the Board. To be fair to the Board, their policy

did refer to the Board being able to rely on local knowledge-so their might be an

argument that this was an issue before the Board.

Sheriff Ross was not persuaded by these arguments. He rejected the argument that

overprovision assessment had to follow upon and expressly incorporate an assessment

of the licensing objectives. He declined to follow the Tesco Aberdeen case and

preferred Buzzworks.

He stressed that they had been taken into account in terms of licensing policy which

itself reflected what the Board considered the objectives to require. It was enough

that the Board had regard to the objectives through this indirect route of policy.

He stressed that whether there was overprovision was very much for the

“consideration” of the Board. Contrary to the submissions of Tesco he rejected the

line that there was a specific process of reasoning that had to be followed. To that

extent the case might be seen as almost going back to the 1976 Act and the area of

broad judgment open to the Board under that Act in overprovision cases. Indeed he

relied on cases decided under that Act to emphasise that overprovision was very much

a matter for the discretion of the Board.

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Here the Statement of Reasons made it clear what was in issue was that number of

premises, proximity of them, capacity and local knowledge of the socio-economic

challenges in the locality. The Board was entitled to conclude there would be

overprovision based on the facts it referred to. It had regard to all relevant factors and

made a judgment call on overprovision.

What is striking of course is that the area in question had not been declared

overprovided following upon a careful consultation exercise. Nevertheless that Board

could still form a view at a hearing that a particular application would lead to

overprovision.

This does seem to suggest that although an overprovision policy needs a clear

evidential basis (eg clear causal links between crime and alcohol) as per the Guidance

from the Ministers, it does not follow that a Board cannot rely on broader and more

general concerns about an application in holding that there could be a question of

cumulative impact on an area. Even where premises are well run a Board can still

consider the overall impact they may have in an area which already has a high outlet

density.

He did not consider there was merit in the natural justice challenge as the issues were

plainly before the Board and were known to be so. The “Tesco” is different line did

not meet with success. The Board was entitled to hold that Tesco were not offering

anything different in terms of alcohol provision from anyone else in the locality.

ENGLISH CASELAW-OBJECTIVES AND CONDITIONS

The nature of what is an “objective” was considered by the Court of Appeal in

Thornby Farms v. Daventry District Council [2002] EWCA Civ 31 where Pill LJ

gave the judgment of the Court. Although decided in the context of environmental

legislation the analysis remains potentially relevant to the system of licensing

objectives. He said:-

“ 53. An objective in my judgment is something different from a material consideration. I agree with

Richards J that it is an end at which to aim, a goal. The general use of the word appears to be a modern one.

In the 1950 edition of the Concise Oxford Dictionary the meaning now adopted is given only a military use:

“towards which the advance of troops is directed”. A material consideration is a factor to be taken into

69

account when making a decision, and the objective to be attained will be such a consideration, but it is more

than that. An objective which is obligatory must always be kept in mind when making a decision even while

the decision maker has regard to other material considerations. Some decisions involve more progress

towards achieving the objective than others. On occasions, the giving of weight to other considerations will

mean that little or no progress is made. I accept that there could be decisions affecting waste disposal in

which the weight given to other considerations may produce a result which involves so plain and flagrant a

disregard for the objective that there is a breach of obligation. However, provided the objective is kept in

mind, decisions in which the decisive consideration has not been the contribution they make to the

achievement of the objective may still be lawful. I do not in any event favour an attempt to create a hierarchy

of material considerations whereby the law would require decision makers to give different weight to

different considerations.”

This case describes situations where the decision maker must take action to advance

an objective. Sometimes the action will do much to achieve that end. Sometimes the

action will do little to advance the objective much. Provided the objective is kept in

view the decision will be made for the purpose of that objective, either way the

decision will be taken for the purpose of securing that objective.

In some cases there may only be a modest impact on securing an objective. However

the step that is taken will still be for the purpose of that objective. The Sheriff in Lidl

appears to have been influenced by this line. Thornby Farms was a case cited to him

and he appears to have accepted the view that it was open to the Board to consider

that it was necessary or appropriate for the objective of crime prevention to suspend

the licence by reason of deterrence. Other Boards might have taken a different view.

Some may have considered a warning was enough. It might be arguable that a five

day suspension does little to secure the objective. However it does not follow that the

decision was not made for the purpose of securing the objective.

Another decision which rested squarely on the licensing objectives is Khan v.

Coventry Magistrates' Court [2011] EWCA Civ 751.

There a magistrates' court hearing an appeal against a decision by a licensing

authority to revoke a licence to sell alcohol for consumption off the premises was not

limited by the Licensing Act 2003 section 181(2)(b).

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The claimant shopkeeper (K) applied for judicial review of a decision of the

defendant magistrates' court to uphold the revocation of his licence to sell alcohol for

consumption off the premises.

The licence had been transferred to K after he purchased a local supermarket from the

previous holder of the licence. The local licensing authority reviewed the licence, on

grounds that K had been selling alcohol to persons under the age of 18, and revoked

the licence. K unsuccessfully appealed the revocation to the magistrates' court. Before

the magistrates' court evidence was adduced by the authority of the seizure by the

Revenue of consignments to K of spirits on which it was believed duty had not been

paid and of a complaint by a local resident that the supermarket was receiving large

deliveries of alcohol from the back of a van at strange hours several times a week.

The magistrates' court held that K had breached the Act; that he had a poor

understanding of the Act; in particular his role as licensee, the designated premises

supervisor and the licensing objectives; and that the management of the premises was

such that there was a real likelihood that crime prevention measures in the vicinity

and the aim of protecting young persons from harm would be undermined by his

holding a licence.

K contended that pursuant to section 181 the magistrates' court did not have

jurisdiction to consider grounds of complaint other than those that had been raised in

the original licence review so that it ought not to have admitted or taken into account

when making its decision the evidence as to the Revenue investigations or the

complaint about the alcohol deliveries.

The application was refused. The Court held that it was clear that under section 181

(2)(b) the magistrates' court had the power to make any order of the kind that the

licensing authority authority could have made, but it did not say anything about the

grounds on which such an order might be made. That would depend on the evidence

before it. The magistrates' court's function was to consider the application by

reference to the statutory licensing objectives untrammelled by any of the regulations

that governed the procedure for a review under section 51 of the Act. It was therefore

entitled to consider evidence of events occurring before the application to the

licensing authority as well as evidence of events occurring since the authority's

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decision. The real force of K's submission lay in the proposition that the person whose

licence was under threat ought to know the nature of the case against him so that he

had a fair chance of meeting it. In principle that had to be right, but it did not follow

that it could be achieved only by limiting the hearing before the magistrates' court to

the allegations that were made before the authority. What was required was that

proper procedures be in place in the magistrates' court to ensure that both parties were

aware in advance of the hearing of the case they had to meet and the evidence on

which it would be based. The right to call new evidence cut both ways: it might

benefit the licensee if he could show that some or all of the concerns which led the

authority to revoke or restrict his licence had been met.

Moreover, the need for a proper opportunity to consider the case applied as much, if

not more, to fresh evidence as it did to new grounds of complaint. It could be very

difficult to deal adequately with late evidence of which proper notice had not been

given, however, in the instant complaint the late admission of evidence by the

authority was not the subject of any formal complaint. Accordingly, having regard to

the statutory provisions and to the fact that the appeal was a fresh hearing, the

magistrates' court was not limited to considering only those grounds of complaint that

were raised in the notice of application or the representations before the authority.

It was not possible to infer that from section 181(2) (b) and if that had been intended

such a restriction would have been included in the Act itself or the regulations made

under it.

In any event the magistrate's court's reasons for dismissing K's appeal were essentially

the same as those which had led the authority itself to revoke his licence, namely,

poor management of the premises of a kind that was likely to undermine local

measures to deter crime and prevent harm to young people (see paras 12-13 of

judgment).

Conditions were considered in R. (on the application of Developing Retail Ltd) v

East Hampshire Magistrates' Court [2011] EWHC 618 (Admin). Here a condition

was unenforceable because it was too vague.

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There the High Court held that a magistrates' court had been entitled to review on its

merits a licensing authority's decision to impose a condition on a provisional

statement of a premises licence, and to extend the condition to an outdoor unlicensed

area to prevent noise nuisance. However, an additional noise condition imposed had

been so vague as to be unenforceable. Even so along the way the Court said things

which might usefully be considered in Scotland. I have highlighted the most

interesting parts in bold.

The claimant company (D) applied for judicial review of a decision of the defendant

magistrates' court to impose two conditions on a provisional statement of a premises

licence granted to D.

D had entered into a contract with the second interested party local authority to

become the leasehold owner of land to be developed into a seafront cafe and

restaurant. The licensing sub-committee of the local authority granted D's application

under the Licensing Act 2003 via section 29 for a provisional statement of a licence

for the supply of alcohol, late-night refreshments and regulated entertainment at the

premises, subject to a condition that an external seating area, excluding a balcony, had

to be vacated by 23.00 each evening. D was also required to mark the licensable area

on a plan, which excluded the balcony. The first interested party local residents

appealed because they had concerns that late-night noise would emanate from the

building, in particular from the balcony. The magistrates' court ordered that the

condition be altered to include the balcony, and added another condition that all noise

from the regulated entertainment at the premises should be inaudible one metre

outside any noise-sensitive premises.

D argued that (1) the noise condition was vague, imprecise and arbitrary; (2) the

magistrates' court had no jurisdiction to extend the original condition to include the

balcony; (3) the new balcony condition was not necessary or proportionate, because it

duplicated other regulatory provisions regarding noise; (4) the magistrates' court had

failed to give sufficient weight to the decision of the licensing sub-committee. The

first interested parties argued that D's application was academic because the contract

had since been rescinded by the local authority.

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The Judge held that the application should be granted in part.

The noise condition added by the magistrates' court was so vague as to be

unenforceable. There was no clarity as to the premises or location intended to be

protected, and the meaning of "inaudible" was unclear. However, there had been

evidence to justify a condition to protect local residents from noise, which could have

been lawfully achieved by a condition that specified the particular nearby locations to

be protected and described the decibel level of noise that was acceptable at those

locations. The condition was quashed and the issue remitted to the magistrates' court

to consider an alternative condition (see paras 35-37 of judgment).

There was nothing in the Act which suggested that the power to impose a

condition was restricted to areas where licensable activities were permitted. It

was irrelevant that the plan of the licensed premises excluded the balcony (paras 40,

42).

The magistrates' court had been entitled to regard the balcony condition as

preventative rather than reactive. The condition was clearly and proportionately

tailored to the size, style, characteristics and activities taking place at the site. It

applied only in the period after 23.00 hours and was clearly targeted to prevent noise

being generated in the open air on the balcony late at night (paras 43-44).

CIVIC GOVERNMENT ROUNDUP

There have been some interesting cases over the last year under the Civic Government

(Scotland) Act 1982.

Coyle v. Glasgow City Council [2012] CSIH 33, 2012 SLT 1018, decided 29 March

2012, was an Inner House appeal arising from refusal of an HMO licence on renewal.

The case raised issues of fairness and that commonly occur at a range of licensing

hearings. I acted for Glasgow in a successful defence of the decision of the Sheriff to hold

that there had been no unfairness in the proceedings before the Council at which the

appellant lost his licence for a House in Multiple Occupation.

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The arguments for the appellant were that the police objection to his application had been

allowed late without a good reason and also that there had been a breach of natural justice

because the police representative had been permitted to give information to the Council

which went beyond the terms of the letter of objection.

The Inner House accepted the arguments that the Council had given adequate reasons for

accepting the late objection and that there had been no unfairness as the police

representative had simply sought to rebut points put in issue by the solicitor for the

appellant. Robert Skinner of Terra Firma acted for the appellant.

The arguments for the appellant were as follows:-

“[12] The appeal before this Court was argued on similar grounds. It was submitted

that the sheriff had erred in law by failing to appreciate that the Committee had

exercised its discretion in an unreasonable manner by allowing the police objection to

be entertained late and, in any event, by failing to provide proper and adequate

reasons for its decision to allow the objection to be entertained late. It was argued

that the explanation given by the Committee was inadequate. It had merely reiterated

the relevant statutory provisions and provided a simple narration of the background.

Neither had been adequate (see Speedlift Auto Salvage v Kyle and Carrick District

Council 1992 SLT (Sh Ct) 57 and Ritchie v Aberdeen City Council 2011 SLT 869). It

had not been necessary for the second defender to delay intimating any objection until

the conclusion of the criminal proceedings. Moreover the Committee had failed to

address why the second defender had waited until several weeks after the conclusion

of the criminal proceedings before making his objection. The decision to allow the

second defender's objection had been crucial to the outcome of the appellant's

75

application. Without the objection from the second defender there would not have

been any proper basis for refusing the appellant's application. In these circumstances

the appellant was entitled to know why the Committee had been satisfied there was

sufficient reason to allow the objection to be entertained late and the material facts

which were taken into account in reaching that decision.

[13] Secondly, it was argued that the learned sheriff had erred in law in failing to

appreciate that the Committee had exercised its discretion unreasonably and acted

contrary to natural justice by basing its decision to refuse, at least in part, on matters

which did not form part of the police objection, namely the appellant's alleged

criminal conduct towards his female tenant.

[14] The objection on behalf of the second defender had been based solely on the two

convictions for contravening section 41(1)(a) of the Police (Scotland) Act 1967. Those

charges included no complaint as to the appellant's conduct towards his female

tenant. Notwithstanding this, and in the face of opposition from Mr Batters, the

second defender's representative had read out a lengthy statement concerning the

appellant's alleged conduct. The Committee had thus taken account of matters that

were highly prejudicial to the appellant, of which the appellant had not been given

any notice and which the appellant disputed.

[15] The alleged incident involving the appellant's female tenant had formed no part

of the objection lodged by the second defender. There had been no specification in

that objection of any misconduct on the part of the appellant directed against anyone

other than the police, and, in particular, none towards the female tenant of the flat.

The requirement of specification in objections was a strict one (see The Noble

Organisation Ltd v Kilmarnock and Loudon District Council 1993 SLT 759, at pp

762L - 763 E).

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[16] Furthermore there had been a breach of natural justice by allowing allegations

as to the appellant's conduct towards the female tenant to be sprung upon the

appellant and his solicitor (see Catscratch Ltd v Glasgow Licensing Board 2002 SLT

503, at para [13]) The sheriff had accordingly erred in holding that the Committee

had been entitled to consider the allegations regarding the appellant's conduct

towards the female tenant "as material to give background to the letter of objection"

and in holding that the Committee had been entitled to take into account matters not

specified in the police objection, because the presence of the appellant at the hearing

cured any unfairness.”

However the Court preferred the contrary arguments advanced by me. The Opinion of

the Court said:-

[23] In our opinion, it cannot be argued that the Committee was not entitled to be

satisfied that there was sufficient reason for entertaining the second defender's

objection to the appellant's application for renewal of his House in Multiple

Occupation Licence for 12 Belmont Street, Glasgow. The Committee was entitled to

do so notwithstanding that the objection had not been made within the statutory time

limit provided for in para 3 of Schedule 1 to the 1982 Act. Nor can it be argued that in

its Statement of Reasons dated 11 April 2011 the Committee failed to give adequate

and intelligible reasons for allowing the second defender's objection to be

entertained.

[24] In paragraphs [3] - [8] of our opinion we have set out the history of events from

7 February 2010, the date of the appellant's arrest, until 10 March 2011, the date

when the appellant's application was heard and determined by the Committee. In the

77

fifth paragraph of its Statement of Reasons, which we have quoted in full (para [9]),

the Committee records that its was informed on behalf of the second defender that the

objection was late because there was a pending case against the appellant, the nature

of which was relevant to the appellant's application. The application to have the

objection entertained, although late, was opposed by Mr Batters on behalf of the

appellant. He is recorded as having referred to a delay of some two months in receipt

of the objection. It is not entirely clear which period of two months Mr Batters was

referring to. However, what is clear from the first letter of 10 December 2010, which

refers to the second defender's earlier letter of 14 April 2010, and was placed before

the members of the Committee, when they were considering whether to entertain the

second defender's objection, is that several months had elapsed since the appellant's

application had been lodged.

[25] The appellant was, of course, aware that be had been arrested on 7 February

2010. He was aware that he had initially pled not guilty to the charges he faced and

he was also aware that he had subsequently pled guilty to the two contraventions of

section 4(1)(a) of the Police (Scotland) Act 1967 on 10 December 2010. Armed with

that information, the appellant was well able to understand the reasoning behind the

decision of the Committee to allow the second defender's application to be received

late in terms of para 3(1) of the 1982 Act. When the second defender had received

notification of the appellant's application to renew his House in Multiple Occupation

Licence criminal proceedings were pending against the appellant. The nature of those

proceedings and the investigation involved had been considered relevant to the

appellant's suitability to hold the licence. Following upon the appellant's conviction

on the two charges, the second defender had intimated an objection to the appellant's

application. In our opinion the Committee was entitled to reach the conclusion that

78

the procedure followed by the second defender constituted sufficient reason why the

objection had not been lodged within the time limit required under sub-paragraph

3(1) of the 1982 Act. The fact that in other proceedings before different licensing

authorities applications for the grant or renewal of licences are dealt with whilst

criminal charges are outstanding before applicants does not mean that it was not

open to the second defender to follow the procedure he did in the present case or that

it was not open to the Committee to find sufficient reason for the late lodging of an

objection in the circumstances it founded upon. In our opinion it is also entirely clear

from the terms of the fifth paragraph in the Statement of Reasons why the Committee

reached the decision that it did.

[26] The second main plank of the submissions on behalf of the appellant was to the

effect that the Committee had acted in breach of natural justice by basing its decision

to refuse the appellant's application, at least in part, on matters that did not form part

of the police objection. In our opinion, the history of what happened during the

Committee's meeting on 10 March 2011 is of importance. We have sought to analyse

this already. In the third paragraph in the Statement of Reasons (quoted in paragraph

[9] above), the Committee notes that the appellant had been convicted under the two

charges under the 1967 Act. It then records that the Committee was told by the

representative of the Second Defender that the appellant had been convicted

following an incident on 7 February 2010; that the incident had taken place in a flat

owned by the appellant, which was occupied by a female tenant; that the police had

been called to the house by the female tenant, who had told the police that the

appellant was inside the flat and was refusing to leave; that the female tenant had

been very distressed; and that when the police had entered the flat the female tenant

79

was found to have locked herself in her bedroom. The appellant had subsequently

been arrested.

[27] The following paragraph of the Statement of Reasons records Mr Batters'

response to what had been said on behalf of the second defender. The terms of that

response do not record any challenge to the facts spoken to by the second defender's

representative when he first spoke to the objection. Nor, during his submissions to this

court, did counsel for the appellant suggest that any of the factual matters, as we have

summarised them, were disputed by the appellant.

[28] In our opinion, all that was said by the second defender's representative when he

first addressed the Committee was unexceptionable and can fairly be described as

placing the appellant's convictions in context. What was said amounted to no more

than informing the Committee of when, where and in what circumstances the

appellant came to be arrested and to commit the two offences of which he was

convicted. In these circumstances no valid objection can be taken to such information

having being placed before the Committee or relied upon by the Committee in

reaching their decision. In particular what was said by the second defender's

representative cannot properly be described as amounting to an "ambush".

[29] What followed thereafter broadened the scope of the hearing. Mr Batters, no

doubt on the instructions of the appellant, set out in some detail why the appellant had

gone to the flat at 20 Walker Street and what had happened when he was there. What

Mr Batters said is summarised in the eighth and ninth paragraphs of the Statement of

Reasons. As the following paragraph makes clear, the second defender's

representative then addressed the Committee further. In doing so he amplified upon

what he had said earlier and challenged a number of the contentions that had been

advanced on the appellant's behalf by Mr Batters.

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[30] It was submitted by counsel for the appellant that during the course of the

hearing the second defender's representative went beyond the scope of the objection.

We accept that he did so, but only when he was replying to the submissions advanced

by Mr Batters on the appellant's behalf. In particular what was said in response to Mr

Batters' submissions appears to have been intended to counter Mr Batters' assertion

that the appellant had not been present for "evil purposes". In our opinion, all that is

recorded as having been said by the second defender's representative in reply to Mr

Batters' submissions can be said to arise out of and follow naturally on those

submissions. For that reason we are not persuaded that any breach of natural justice

occurred. Submissions having been made by Mr Batters in the terms they were, the

Committee was, in our opinion, entitled to have regard to those submissions and what

was said by the representative of the second defender in response before they decided

whether to grant or refuse the appellant's application and cannot be said to have

exercised their discretion in an unreasonable manner by doing so. Insofar as there

was any conflict between the submissions on behalf of the second defender and those

on behalf of the appellant, it was a matter for the members of the Committee which

submissions they preferred.

[31] For these reasons we do not consider that the sheriff erred in law in any respect

and the appeal against the decision of the sheriff falls to be refused.”

Of note is the point that although the police officer went beyond the terms of the

original objection, it was against the background of him seeking to respond to points

put in issue by the appellant.

In Donald v. City of Edinburgh Council, 6 May 2011, decided at Edinburgh Sheriff

Court by Sheriff Noble, a waiting list operated by the Council was held to be

81

unlawful. Here Mr Donald had applied for a taxi plate. Edinburgh at that point had a

waiting list system albeit the list had been closed to new entrants for a number of

years. There was therefore no way that a person not on the list could get on to the list.

After a demand survey was carried out it was decided that new licences were

available and there was a great clamour for these. Mr Donald was the first to make

his application.

The Council however decided that licences, all things being equal, should be allocated

according to place on the waiting list. Strangely enough all the licences were

allocated to people on the waiting list regardless of the date they made their actual

application.

When Mr Donald’s turn came his application was refused as the new limit on

numbers had been reached and there was nothing exceptional in his case to justify a

grant having regard to Section 10(3) of the 1982 Act.

Mr Donald along with 20 or so other disappointed applicants appealed to the court. I

was successful arguing the appeal and the decision of the Council was overturned.

Indeed the Sheriff went so far as to order that Mr Donald should be granted a licence.

I understand that this has now happened and that the other disappointed applicants

who also brought appeals are likely to similarly benefit.

Basically the Sheriff was not satisfied that the system operated by Edinburgh was

rational or fair. It was a closed list and could confer automatic priority onto those on

the list and gave them an advantage over persons not on the list regardless of the

experience or otherwise of such persons.

The case was an interesting one to run as it involved a survey of a lot of the law –

mostly English – on how one allocates taxi plates. In England there is no uniform

approach. Some authorities have used names drawn from a hat. Some have used a

points based system and some have used a waiting list. The Edinburgh system was a

mix of a waiting list and then later weighting according to points. The points were

based on for example how long you had been on the list, whether you held another

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plate, whether you held a drivers licence etc. In principle such an approach might be

okay provided the underlying list itself is fair. As this was a list closed to new

applicants there was a basic unfairness.

The Council appealed to the Court of Session but the appeal has been abandoned.

In Donaldson v. Renfrewshire Council [2011] CSIH 66 was an appeal brought

against the decision of a local authority to refuse to renew a street trader’s licence at

least insofar as some of the hours of trading were concerned.

Basically for a number of years Mr Donaldson had run a burger van at various sites in

Paisley. His hours of trading were outside of the policy hours permitted by the

Council. In 2002 he won an appeal at Paisley Sheriff Court and the Council was

ordered to grant him a licence to include these longer hours of trading. In 2006 his

application for renewal was determined under delegated powers and again he was

given hours outside of policy.

In 2009 his application for renewal came up again but this time round the Council

refused to give him the longer hours. There were no objections to the renewal. The

sole basis for their decision was that it was outside of policy. They gave no other real

reason for their decision.

I acted for Mr Donaldson in the Court of Session stage of the case. The main

argument put up by the Council was that reasons given were adequate. They relied on

the case of Calderwood v. Renfrewshire Council 2004 SC 691.

The argument for the Council was that the Council was entitled to have a policy and

apply it. It was plain that they had listened to why Mr Donaldson considered that he

should be an exception – his case was that he already was an exception – but they

decided to reject that submission. It could not be said the Statement of Reasons was

inadequate.

My argument was that Calderwood was a different case. There Mrs Calderwood had

a flower stall at Paisley Cross. She traded there for a number of years without any

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problem. The Council introduced a new policy to the effect that there would be no

street trading near the cenotaph at Paisley Cross. When her licence came up for

renewal they applied a new policy to her and considered that she was not an

exception. All the Statement of Reasons said in that case was that the Council did not

consider that she was an exceptional case. The Court of Session held this was

sufficient, overturning the decision of the Sheriff.

Donaldson went the other way. The importance of this case was that Mr Donaldson

was already an exception to policy and it was reasonable of him to argue that he

should be made an exception again. It was not good enough for the Council to say that

he should no longer be treated as an exception. Nothing had changed since the last

renewal and there were no adverse comments from anyone, including of course the

police and it was important that the policy had been developed to help the police

manage Paisley Town Centre.

The reasons for refusing to renew by simple reliance on “policy” were not good

enough.

In Scally and McGurk v. Glasgow City Council, 20 May 2011, another street trading

case, Sheriff Deutcsh at Glasgow Sheriff Court rejected two appeals. I acted for the

Council. These were again existing stances but there was an objection from the Roads

Department on the basis that the stances were located at locations which were subject

to traffic restrictions. To be fair these orders had been placed for a number of years

and the Roads Department had objected in the past but without success.

This time around the Council took a different view. The appellants argued that the

Council had acted unreasonably. Nothing had changed and the basis of the objection

had remained the same. They also argued that it was unfair of the Council to refuse

the applications and not to restrict them to the hours where the parking restrictions did

not apply.

The latter point was not however an argument made to the local authority committee.

It was argued for the appellants that the Council was still expected to consider

whether a lesser option and outright refusal should be applied.

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The Sheriff had no difficulty in rejection on the latter argument. He accepted my line

that in the context of a busy licensing hearing it is not for the Licensing Committee to

think up other ways in which the application might be capable of grant in part. It is

for the applicant’s lawyer to make that point.

He also accepted the argument that the Council were entitled to look again at matters

and take a different view on whether an objection should be given weight. They were

not bound by the views of their predecessor committee.

That was of course a different case from Donaldson which was about whether

someone was already an exception from an existing policy, a policy created by the

licensing authority. If Scally and McGurk had been different and there had been a

policy on location and nothing had changed in the interim it might have been harder

to justify the refusal.

In Kenmare v. Glasgow City Council, 6 June 2012, Sheriff Deutsch, a challenge was

brought to the policy of Glasgow City Council not to allow street trading in food

within a particular radius of secondary schools. I acted for the Council. The policy

rests on health and nutrition grounds. An operator argued that her operation was

healthy and she did not sell things like burgers. However the Court had no problem in

holding that the appeal was misconceived, not least because the appellant tried to run

arguments on appeal she had not put to the Committee. Appeal to the Sheriff is not an

appeal on the merits. The case still carries the implication that the Sheriff did not

consider that the policy was problematic. Had he done so then no doubt he would

have called on the Council to defend the policy more fully.

One to watch on time limits is Anderson v. Glasgow City Council, 10 October 2012.

Lord Menzies sitting as a procedural judge in the Inner House agreed with my

argument that an appeal brought to the Court of Session outwith the 28 day period

provided for in the 1982 Act was incompetent. He accepted my submission, based on

some English House of Lords authority that the Rules of Court could not cut across

the clear words of the statute.

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GAMBLING ACT APPEALS

The first appeal to get to court under the Gambling Act 2005 anywhere in the UK has

just been decided by the Inner House. This was Freddy Williams Bookmakers v.

William Hill Organisation Ltd [2012] CSIH 89, decided on 28 November 2012. I

acted for William Hill and Robert Skinner acted for Freddy Williams.

A bookmaker who challenged a decision of a licensing board to grant a rival a licence

for betting premises has failed in its appeal after judges upheld a sheriff's ruling that

the action was "incompetent" because the summary application had been lodged in the

"wrong sheriffdom".

On February 7, 2012, East Ayrshire Licensing Board granted William Hill a licence

for betting shop at 55/57 Glaisnock Street, Cumnock. The board advised parties orally

of their decision, and subsequently issued a formal notice of their decision under

cover of a letter dated 2 March 2012.

However, Freddie Williams Bookmakers, with premises at 2A Glaisnock Street,

sought to challenge that decision and on February 28, 2012 - before receiving the

formal notice - they lodged an appeal by way of summary application at Kilmarnock

Sheriff Court, as East Ayrshire Council's headquarters were situated within its

jurisdiction.

However Kilmarnock Sheriff Court lies within the Sheriffdom of North Strathclyde,

whereas Cumnock lies within the Sheriffdom of South Strathclyde, Dumfries and

Galloway.

At a hearing before the sheriff, William Hill contended that the appeal was

incompetent as (a) it had been lodged in the wrong sheriffdom, and (b) it had been

lodged prior to the 21 days following receipt of notice of the board's decision in terms

of section 207(1) (c). The sheriff sustained the first argument, and rejected the second.

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Freddie Williams appealed to the Court of Session in relation to the first argument,

while William Hill cross-appealed in relation to the second.

The two points which arose in the appeal concerned the proper construction of the

Gambling Act 2005: first, whether an appeal lodged in a sheriffdom other than that in

which the relevant betting premises were situated was a competent appeal; and

secondly, whether the appeal was competent although lodged prior to the time-period

to the time set out in the Act.

In delivering the opinion of the court Lady Paton said:

"While secondary legislation in the form of the Sheriff Court Summary Applications

Rules 1999 enables cases to be transferred from any sheriff court in Scotland to any

other sheriff court, those rules are not referred to or incorporated in the 2005 Act. We

therefore agree with counsel for the second respondents that such secondary cannot

affect or qualify primary legislation such as the 2005 Act.

"The appeal lodged at Kilmarnock Sheriff Court has been lodged in a court which

does not have the necessary jurisdiction. Because of the specific and mandatory

wording of the 2005 Act, it is our opinion that such a fundamental lack of jurisdiction

cannot be cured by remitting the appeal to another sheriff court in terms of the 1999

Rules. The initial appeal is in our view incompetent and without effect, and the

sheriff's decision in that regard cannot be criticised."

On the issue of the time-frame within which to lodge the appeal, Lady Paton added:

"In view of the precise language used (which again we consider, on a proper

construction of the statute, to be mandatory rather than directory or permissive), the

appeal must be lodged at some time within that 21-day period - that is, neither before,

nor after, but during it.”

"In our opinion, Parliament intended that written reasons for the decision should be

issued and known to everyone before any party should be entitled to institute an

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appeal. That appears to us to be a sensible and rational approach which is likely to

prevent misconceived, ill-directed, or unnecessary appeals.

© SCOTT BLAIR, ADVOCATE

APRIL 2012

Ref WB/SB

About Scott Blair

Scott can be contacted on scottblair@btinternet.com

Scott is a member of the Murray Stable (www.murraystable.com)

Scott worked as a solicitor in private practice before becoming an advocate in 2000. He specialises in public law. He has been instructed in cases in the European Court of Human Rights, Supreme Court, Judicial Committee of the Privy Council, House of Lords, Court of Session, High Court of Justiciary, Sheriff Court and before various tribunals, licensing boards and local authority regulatory committees. He is an Immigration Judge of the First- Tier Tribunal (Asylum and Immigration Chamber) and a Legal Convener of the Mental Health Tribunal for Scotland. He is widely published in the public law field.

Much of his current public law practice is in the area of licensing law.

He is a member of the Licensing Law Sub-Committee of the Law Society of Scotland. He is a regular contributor to Scottish Licensing Law & Practice and has also contributed to English licensing law publications.

He is a member of the Institute of Licensing.

To coincide with the coming into effect of the 2005 Act Scott published an Online Guide to the Licensing (Scotland) Act 2005. Copies of the Guide can be downloaded from the Murray Stable website at www.murraystable.com

In his licensing practice Scott appears for both applicants and objectors  before Licensing Boards and local authority committees in a range of areas including liquor licensing, betting and gaming and cases under the Civic Government (Scotland) Act 1982.

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He has considerable experience of hearings involving the review of premises licences.

His licensing clients have included Belhaven Breweries Ltd, Belhaven Pubs, Festival Inns Ltd, Mitchells & Butlers plc, Spirit Group plc, the Scottish Beer and Pub Association, Tesco Stores Ltd, JD Wetherspoon plc, Motor Fuels Ltd, First Quench Retailing Limited, Epic Group (Scotland) Ltd, Majestic Wine Warehouses Limited, William Hill Organisation Ltd, Coral (Scotland) Ltd and Tote. He also acts for a range of smaller operators and also Licensing Boards , local authorities and the police.

He also acted for the Scottish Beer and Pub Association in their judicial review of the Glasgow Licensing Board policy on personal licence holders. This was the first legal challenge brought under the 2005 Act. He acted for the Association in their judicial review of the attempt to “ban” glass in Glasgow.

He has also been has been heavily involved in the litigation arising out of the controversial test purchasing scheme.

He has appeared many times in the Sheriff Court in liquor licensing appeals in both unreported and reported cases. His Court of Session licensing cases include Smith v. North Lanarkshire Licensing Board, 2005 SLT 544  (liquor licensing- successful appeal against suspension of licence); Catscratch Ltd (No2)  v. City of Glasgow Licensing Board, 2002 SLT 503  (liquor licensing and human rights-fair hearing and peaceful possession rights under ECHR applied to licensing boards); Spirit Group plc and Mitchells and Butlers Limited v. City of Aberdeen Licensing Board, 2005 SLT 13 (liquor licensing-attempt to impose minimum pricing on sale of alcohol unlawful); London and Edinburgh Inns Ltd v. North Ayrshire Licensing Board, 2004 SLT 848 (liquor licensing-consideration of effect of transfer of licence); Scottish Beer & Pub Association and Others v. Glasgow City Licensing Board, 2 May 2008 unreported, Lord Menzies (judicial review of Board policy requiring presence of personal licence holder at all times when alcohol is sold). He recently acted in the first test purchasing appeals under the 2005 Act-BP Express Shopping Ltd v. West Fife Divisional Licensing Board [2007] 37 SLLP 29 ; Alldays Stores Ltd v. Central Fife Divisional Licensing Board [2007] 37 SLLP 34; Shafiq v North Lanarkshire Licensing Board [2009] 42 SLLP 24.

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He has appeared in many appeals under the Civic Government (Scotland) Act 1982 and the former Betting, Gaming and Lotteries legislation. Recent cases include Donald v City of Edinburgh Council, 6 May 2011 (successful challenge to vires of policy on allocation of taxi licences) and Scally and McGurk v. Glasgow City Council, 11 May 2011 (successful defence of appeals against refusal to renew street trading licences on grounds of location and Donaldson v Renfrewshire Council [2011] CSIH 66(inadequate reasoning for application of policy on hours to existing operator of snack van already trading outside of policy and Coyle v Glasgow City Council [2012] CSIH 33 (successful defence of appeal of refusal of HMO licence where unfairness at hearing alleged) and other 1982 Act appeals mentioned in this paper .

He appeared for the Board in Kell (Scotland) Ltd v. City of Glasgow Licensing Board; Drinkcafe Limited v. City of Glasgow Licensing Board; Carmunnock Village Recreation Club v. City of Glasgow Licensing Board and Kaya v. City of Glasgow Licensing Board and Lidl Gmbh v City of Glasgow Licensing Board.

In matters of overprovision he acted as counsel for the petitioners in the recent judicial review case of Buzzworks Limited v. South Ayrshire Licensing Board and JD Wetherspoon plc and for the successful Board in Tesco Stores Ltd v. City of Glasgow Licensing Board.

He acted for the successful party in Freddy Williams Bookmakers v. William Hill Organisation Ltd [2012] CSIH 89, the first appeal under the Gambling Act 2005.

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