LICENSING CASELAW
Scott 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 101102 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
test purchase failures would be very unlikely to support the sanction of suspension.
The facts of that case were as follows.
24
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 personsee 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 mightbecause 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 nonexistent, 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.
51
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.
52
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.
53
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
54
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 Casesee 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.
55
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.
56
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
CLARIFIED?
In
AND
TWO
TRIPS
TO
TESCO-OVERPROVISION
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.
57
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 offconsumption 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
58
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.
60
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
61
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
62
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
63
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.
64
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
71
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
application. Without the objection from the second defender there would not have
75
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
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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
82
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
83
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.
84
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.
85
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.
Freddie Williams appealed to the Court of Session in relation to the first argument,
86
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
appeal. That appears to us to be a sensible and rational approach which is likely to
prevent misconceived, ill-directed, or unnecessary appeals.
87
© 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.
88
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.
89
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.
90
91