LIQUOR LICENSING
CASELAW IN SCOTAND
A REVIEW OF EMERGING
THEMES AND ISSUES
SCOTT BLAIR, ADVOCATE
A QUICK OVERVIEW OF THE LICENSING
(SCOTLAND) ACT 2005
The 2005 Act came into effect on 1 September 2009. It repealed the Licensing
(Scotland) Act 1976 and followed up the Nicholson Report on licensing law reform in
Scotland. Like the Licensing Act 2003 for England and Wales the background to the
Act was to a considerable extent driven by the perceived need to provide a licensing
system fit for the new century. To a considerable degree the health and law and order
lobbies saw the Act as an opportunity to tackle the undoubted problems which exist in
Scotland, as elsewhere, with the abuse and misuse of alcohol.
To assist with an understanding of my review of the Scottish caselaw it might be
useful to provide a very general overview of the Act.
Under the Act the Licensing Board is the body charged with granting , refusing or
varying premises and personal licences.
Like the Licensing Act 2003 the Scottish Act draws a distinction between a licence
for the premises and licences for some, but not all of those who work there, the
personal licence.
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Unlike the 2003 Act ( as far as I understand that Act), the 2005 Act is only concerned
with liquor licensing. Other activities which require a licence eg public entertainment
are covered by the Civic Government (Scotland) Act 1982 as frequently amended.
The Board is made up of councillors drawn from the relevant local authority or
“council”. However the Board is a separate entity from the council. The Board sits
along with a legally qualified clerk. Boards also have review powers and can take
steps, including the step of revocation in relation to premises and personal licences.
Licensing Standards Officers are independent of the Board. They monitor licensing
law in their area. Enforcement is still a police issue in general although these “LSOs”
have some civil enforcement powers. They also report to the Board on matters of
concern.
Under Section 4 of the Licensing (Scotland) Act 2005 there are 5 licensing objectives.
These form the basis of statutory licensing policy under Section 6 and the more
specific overprovision policy under Section 7. However unlike the 2003 Act a Board
is not under a specific general duty to promote the objectives. Rather the objectives
take root via statutory licensing policy and the grounds for refusal.
Boards are also required to take account of the statutory guidance issued under
Section 142 of the Act. This is issued by the Scottish Government. The Guidance is
detailed, but compared to the Guidance under the 2003 Act, says little about how the
objectives are to be approached.
On refusal of a premises licence the grounds are as far as I can see wider than under
the 2003 Act. The provision is Section 23 which provides:
23 Determination of premises licence application
(1) A premises licence application received by a Licensing Board is to be determined
in accordance with this section.
(2) The Licensing Board must hold a hearing for the purpose of considering and
determining the application.
(3) In considering and determining the application, the Board must take account of
the documents accompanying the application under section 20(2)(b).
(4) The Board must, in considering and determining the application, consider whether
any of the grounds for refusal applies and—
(a) if none of them applies, the Board must grant the application, or
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(b) if any of them applies, the Board must refuse the application.
(5) The grounds for refusal are—
(a) that the subject premises are excluded premises,
(b) that the application must be refused under section 25(2), 64(2) or 65(3),
(c) that the Licensing Board considers that the granting of the application would be
inconsistent with one or more of the licensing objectives,
(d) that, having regard to—
(i) the nature of the activities proposed to be carried on in the subject premises,
(ii) the location, character and condition of the premises, and
(iii) the persons likely to frequent the premises,
the Board considers that the premises are unsuitable for use for the sale of alcohol,
(e) that, having regard to the number and capacity of—
(i) licensed premises, or
(ii) licensed premises of the same or similar description as the subject premises,
in the locality in which the subject premises are situated, the Board considers that, if
the application were to be granted, there would, as a result, be overprovision of
licensed premises, or licensed premises of that description, in the locality.
[
(6) In considering whether the granting of the application would be inconsistent with
one or more of the licensing objectives, the Licensing Board must in particular take
into account—
(a) any conviction, notice of which is given by the appropriate chief constable under
subsection (4)(b) of section 21, and
(b) any report given by the appropriate chief constable under section 24A(2).
]1
(7) Where the Licensing Board considers that—
(a) they would refuse the application as made, but
(b) if a modification proposed by them were made to the operating plan [ or layout
plan (or both)]2 for the subject premises accompanying the application, they would be
able to grant the application,
the Board must, if the applicant accepts the proposed modification, grant the
application as modified.
(8) Where the Licensing Board refuses the application—
(a) the Board must specify the ground for refusal, and
(b) if the ground for refusal is that specified in subsection (5)(c), the Board must
specify the licensing objective or objectives in question.
(9) In subsection (5)(e), references to “licensed premises”do not include licensed
premises in respect of which an occasional licence has effect.
Refusal can be made out on grounds other than inconsistency with the licensing
objectives. For example premises might be refused a licence if they were regarded as
unsuitable for the sale of alcohol by reason of character, location or condition.
Overprovision of premises is also a separate ground of refusal. Overprovision is the
broad equivalent of cumulative impact. Anyone can bring an objection to an
application for a premises licence.
Licences are subject to a raft of conditions ranging from mandatory statutory
conditions set out in the Act to conditions fashioned at local Board level in the
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exercise of discretion. Late night premises-typically larger nightclubs-have additional
conditions attached to them. Issues over duplication of conditions emerge from time
to time where Boards use licensing powers for purposes which are covered by other
legislation.
One a licence is granted it can be reviewed by the Board. Review powers are wide.
Anyone can bring a review application based on either breach of a condition of the
licence or a ground relating to the licensing objectives. A Board has power to initiate
a review itself.
If a ground for review is made out a Board can take steps ranging from a warning to
time limited suspension to full revocation of the licence. Steps can also include the
imposition of conditions or the variation of the licence.
In general there are rights of appeal for disappointed applicants or licenceholders
subject to review. These lie on prescribed grounds to the local Sheriff Court. The
Sheriff is the very rough equivalent of a Recorder and has both a civil and criminal
jurisdiction. Appeal from the Sheriff lies to the Inner House of the Court of Session,
the Scottish equivalent of the Court of Appeal. A final appeal could lie to the Supreme
Court.
Scottish court decisions can be found on Scotcourts www.scotcourts.gov.uk. Westlaw
carries Scottish cases if you subscribe to the Scots law option. BAILII is also useful.
Jordans Online and paper Licensing Law Reports also provide Scottish coverage.
There is an excellent Scottish licensing law journal, Scottish Licensing Law and
Practice ( “SLLP”). It also has an excellent website which is regularly updated with
matters of interest-www.sllp.co.uk.
Where there is no right of appeal, judicial review will lie. Objectors do not in general
have rights of appeal.
Some other provisions are worth mentioning. The Act outlaws prescribed promotions
which are deemed to be irresponsible. The use of such a promotion could lead to a
review of the licence up to and including revocation.
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Lastly, given the “don’t drink and drive message” there is general presumption
against garages or petrol filling station being permitted to have a licence unless, very
generally, they can show some wider social benefit to having a licence.
We will look at cases on all of the above areas today.
Since 2009 the Act has been subject to considerable amendment. This has been to the
dismay of many who recalled that the 1976 Act was rarely subject to amendment in a
period of 30 plus years. However the level of legislative intervention is simply a
reflection of (i) the need to fix things that the 2005 Act has not done very well and (ii)
the political agenda which sees reform of licensing law as a way to further general
social policy in relation to anti-social behaviour, crime and disorder and public health.
We will look at some of these further interventions, including minimum pricing, later
in the day.
This is a timely paper. I was pleased to see that the most recent issue of the Journal of
the Institute of Licensing had an article on the licensing objectives co-authored by my
friend and colleague Stephen McGowan. For a small jurisdiction Scotland has thrown
up a lot of judicial consideration of the scope of the objectives!
LICENSING OBJECTIVES -WHERE ARE WE
NOW?
Under Section 4 of the Licensing (Scotland) Act 2005 there are 5 licensing objectives.
These form the basis of statutory licensing policy under Section 6 and the more
specific overprovision policy under Section 7. Inconsistency with a licensing
objective is one of the grounds of refusal for a grant of a premises licence under
Section 23 or of a refusal of a variation of premises licence under Section 30. These
are the objectives-
4 The licensing objectives
(1) For the purposes of this Act, the licensing objectives are—
(a) preventing crime and disorder,
(b) securing public safety,
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(c) preventing public nuisance,
(d) protecting and improving public health, and
(e) protecting children from harm.
The proper scope of the objectives has been a hotly debated battleground in the
Scottish courts.
Round one was 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 ( aka Spearmint Rhino) 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
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.
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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.
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.
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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
Board has now granted the licence.
The Inner House issued their Opinion on 12 July 2001 and can be found at [2011]
CSIH 46 and is reported in 2012 SC 67; 2012 SLT 140. The Court of Session had
this to say:
“[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
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
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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 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.”
What does all of this mean?
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.
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However the objectives are licensing objectives. What is it in these circumstances
that throws up an issue because the premises are licensed?
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…..
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.
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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.
Licensing policy as an expression of what the objectives might require
In a case heard shortly after Brightcrew was decided by Sheriff Scott but before the
decision was issued the Sheriff Principal Taylor in Kell (Scotland) Ltd v. City of
Glasgow Licensing Board,
2000 SLT (Sh Ct) 197, also looked at licensing
objectives and policy based refusals.
In that case the facts were somewhat weaker for the Board in that the Board placed
reliance on flyers which in the view of the Sheriff Principal could not be regarded as
reasonable.
There was nothing in those flyers which could be regarded as
undermining the objectives. The images of women portrayed in them were certainly
no stronger than might be found in a Marks and Spencer’s lingerie department -at
least that’s what I think the Sheriff Principal’s said from the bench!
More seriously although in that case the Board did not succeed on the facts, the
Sheriff Principal did say a number of things which are very important in terms of the
law and the relationship between licensing objectives and statutory licensing policy:
“ [13] It is quite clear that the Act has changed the manner in which Licensing
Boards must operate. The requirement to publish a policy statement, and to consult
before publication, has also altered the previously established legal framework. Mr
Skinner is correct in submitting that when refusing an application made under the
Licensing (Scotland) Act 1976, a Licensing Board required to give proper reasons
with a satisfactory evidential basis. However, now that every Licensing Board
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requires to have a policy statement, it seems to me that it is sufficient for a Board to
refuse a licence on the basis that the application breaches that policy statement
always providing that the Board is prepared to admit exemptions to the policy if there
is specific justification for departing from it. It was well put by Lord Weir in Elder v
Ross & Cromarty District Licensing Board 1990 SLT 307 as quoted in Calderwood:"However, such a declared policy may be objectionable if certain
conditions are not fulfilled. A policy must be based on grounds which
relate to and are not inconsistent with or destructive of the purposes of
the statutory provisions under which the discretion is operated.
Moreover, the policy must not be so rigidly formulated so that, if
applied, the statutory body is thereby disabled from exercising the
discretion entrusted to it. Finally, the individual circumstances of each
application must be considered in each case whatever the policy may
be. It is not permissible for a body exercising a statutory discretion to
refuse to apply its mind to that application on account of an apparent
conflict with policy."
The policy to which Lord Weir was referring would not have been a formal policy as
now required by the Act. Should an applicant take issue with the terms of a Board's
policy statement the applicant is not without a remedy. The respondents are prepared
to entertain applications for an exemption. In any event, I note from Section 6(4) of
the Act that when the Board is exercising its functions under the Act it is only
provided that it "must have regard to the licensing policy statement". It does not
provide that the Licensing Board is obliged to slavishly follow what is contained in
the licensing policy statement. In this appeal the appellants sought to argue that the
terms of the policy statement in relation to the performance of adult entertainers
could not be said to promote any of the licensing objectives set out in Section 4 of the
Act. I agree with Mr Blair that once a policy has been issued it is unnecessary for a
Licensing Board to have to justify the terms of the policy either at the hearing of an
application or on appeal. That would defeat the purpose in having a policy statement.
[14] I do not think it is open to this court to say whether the respondents' policy
statement when it addresses the issue of how dancers should perform either promotes
or seeks to promote the licensing objectives set out in Section 4 of the Act. That is a
matter for the Board and their consultees exercising their background knowledge and
experience. In any event, I note that Section 6(3) only requires a Licensing Board to
ensure that the policy stated in the statement seeks (my emphasis) to promote the
licensing objectives. Whether the respondents' statement seeks to promote the
licensing objectives might be a different test than whether the policy does promote the
licensing objectives. I was not addressed on whether it is appropriate to draw such a
distinction. It also seems to me that evidence might be required, or at least some
agreed evidential base, before an opinion could be formed as to whether the Board's
policy with regard to the performance of dancers could on any view promote or seek
to promote the policy objectives. Although I was not formally addressed on this issue
it appears to me, at least on a preliminary view, that such a challenge should
probably be made in a process for the judicial review of the respondents' decision to
issue a licensing policy statement in the terms which they did. I, on the material
before me, cannot say whether the banning of the exposure of female genitalia by
dancers in an establishment where alcohol is on sale is likely to seek to prevent crime
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and disorder. I appreciate that in Risky Business, a case involving a similar
application, the Inner House held that the application should have been granted
because the Licensing Board did not identify what background knowledge or
experience they had relied upon and there was no material before the Board which
any reasonable Board could have considered justified a refusal. However, given the
new statutory basis for a policy statement, with the requirement to consult before
issuing the policy, I believe that it is enough for a Board to refuse an application on
the basis that it breaches the published policy statement, providing always that in so
doing the Board approaches the application of the policy statement in a reasonable
manner and is prepared to admit exceptions to the terms of the policy statement. On
the other hand, I think it is open to this court to come a view on whether it is
appropriate for the respondents' policy statement to make provision for sanitary
conveniences, for example, as that issue can be determined as a matter of
construction of the Act and the guidance issued by Scottish Ministers. It is not an
issue which depends upon the experience and local knowledge of the respondents.”
It will be again seen that considerable weight is placed on policy. Essentially what the
Sheriff Principal appears to have held is that there would be no point in a Board
consulting on a policy and taking into account evidence submitted during the
consultation process and formulating its policy if it could be challenged each and
every time on appeal. Policy is therefore entitled to considerable weight. He also
seems to be saying that a policy should be taken as an expression of how the Board
considers objectives might be met.
Plainly he is not saying that failure to meet policy is a ground of refusal but that
compliance with policy is likely to be a strong indicator as to whether the objectives
are met. He makes it clear that even in a policy case, policy must be applied
reasonably and also of course exceptions to policy should always be considered. That
is consistent with the existing administrative law.
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?
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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”.
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.
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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.
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.
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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.
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.
16
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.
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.
17
Plainly each case will differ and it is difficult to give hard and fast guidance beyond
that.
Brightcrew and 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.
Discretion or judgment of the Board -how wide?
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 –lessons from Brightcrew
Section 27 of the Act prevents a Board from imposing a condition which would
duplicate another enactment eg planning, building, control, food safety. The 2005 Act
is therefore perhaps a little more prescriptive than the 2003 Act which approaches the
issue of duplication from the perspective of whether a condition is “necessary” for the
promotion of a licensing objective.
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”.
18
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.
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
19
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 Kell the Sheriff Principal also looked at the question of the extent to which a Board
was entitled to enter into consideration of areas which might properly be thought to be
for other regulators. There the Board sought to impose via policy a requirement that
the dancers be given separate toilet facilities from patrons.
He made it clear the Board policy could not assist there. If an aspect of activity in
licensed premises is already covered by a regulatory regime he appears to have made
it quite clear that the Board should not stray into that area. Although The Queen on
the Application of Bristol Council v. Bristol Magistrates' Court [2009] EWHC
625 (Admin), suggests that at least in England Wales, licensing authorities might
have some ability to consider gaps in other regulatory regimes and to take action to
fill in those gaps, Kell suggests that the Scottish approach might be somewhat stricter.
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.
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.
20
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
referable 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
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.
21
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.
There is one judicial decision to date. It is likely that there will be more over the
course of the coming year as a number of Licensing Boards have refused applications
brought by the likes Tesco and Sainsbury to operate licensed convenience stores.
Health has been a major consideration given concern over whether the areas in
question are in danger of being over-provided with off sales premises.
A glimmer of hope for appellants might be thought to emerge from another case.
There the Temporary Sheriff Principal disapproved the decision by Western Isles
Licensing Board – Galloway v Western Isles Licensing Board, 18 January 2011.
In that case the Board had refused a variation application for a club to include
Sundays between 12 noon and 11pm. Various arguments were presented. However
the Board was not represented.
In that case the Sheriff Principal took the view that one of the reasons the Board’s
decision failed was that it amounted to an arbitrary application of policy and there was
no factual material to support the view that the objective in question – that of health –
would be breached if the application were granted.
In a closer reading of the case it seems to me that by policy the Sheriff Principal was
simply referring to a policy on hours and it is not at all clear that the Board actually
had a policy which was squarely based on health concerns and which supported their
22
assessment of appropriate hours. Here recall that under section 6 of the 2005 Act as
inserted by amendment under section 11 of the Alcohol Etc., (Scotland) Act 2010 that
Boards now have a duty to consult the Health Board in formulating section 6 policy.
Whether this will be capable of “filling the evidential gap” in health cases remains to
be seen.
If the Board had a robust policy based on information provided by a responsible body
such as the Health Board, then that might have provided the Board with sufficient
factual material to form the view that the application should have been refused. This
case seems to me to be an example of a board seeking to invoke the health objective
without having any proper basis in fact to do so.
The Board relied on the objective of protection and improvement of public health.
The Board said “the Board considered that granting the application would result in the
increased availability of alcohol and that such increased availability would not be
consistent with protecting and improving public health. The Board noted that the
level of alcohol dependency and abuse in the Western isles was a well-known fact in
the public domain.
The Board considered that the applicant has not demonstrated that such increased
availability of alcohol would be consistent with the aforesaid licensing objective”.
The Board was not represented at the appeal hearing and accordingly no contrary
argument was put to those advances by the appellants. In any event as it was not at all
clear that this was a case where the Board could be said to be applying the Section 6
policy.
The Sheriff Principal held that the Board had erred in a number of respects.
First of all the Sheriff Principal was satisfied that the Board had imposed an improper
onus on the applicant. He made the point that under Section 30(4) if none of the
grounds of refusal applied then the Board has to grant the application. He noted that
it was not for an applicant to persuade the Board that what the applicant wants to do
will meet the objectives. The Board would be required to consider all relevant
23
material but it was for the Board to assess that material and having done that it should
have asked itself whether any of the grounds of refusal existed. It was clear from the
Statement of Reasons that the Board had approached matters on the basis that if the
application increased availability of alcohol, the applicant had not demonstrated that
increased availability would be consistent with the objective. That qualification led
him to the view that the Board had introduced into its decision making process a
requirement on the applicant which has no basis in the statutory formula. That was a
clear error of law.
His second concern was that he considered that there had been an arbitrary application
of a general policy.
He said that there were no objections to the applications from the police (of course
this could not be as there was no crime and disorder issue) or any other body
concerned with public health.
The Board did not focus why the granting of the application would be detrimental to
public health. He accepted that the Board policy included in part the wish to protect
and improve public health but he considered the application of that general policy to
this application without examining the specific merits, amounts to an arbitrary
application of policy. I make two points about this.
First, the absence of any reference to the line about the scope of licensing policy
might have to be approached with some caution. The Sheriff Principal was of course
not bound by those cases but equally he was not referred to them and it its of course
clearly arguable that the factual basis which concerned the Sheriff Principal so much
in Galloway might be regarded as being supplied by the policy itself and that the
proper approach was not whether there was a specific issue with these premises, but
whether the Board against a background of its general policy which is a grounding in
fact, should have made an exception.
Second, it was not apparent from the case whether in any event the Health Board had
ever provided any material to the Board in its formulation of policy regardless of
whether or not it objected.
24
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.
Where the objectives have really begun to bite has been in relation to applications for
variation of hours. The trend of the cases to date has been generally supportive of
Boards. It is early says yet but the result in the Inner House may not have an impact
on this emerging line of authority. This is on the view that these cases are about the
licensing objectives properly understood in the sense described in Brightcrew. They
are certainly more closely related to the sale of alcohol than say the provision of flyers
advertising exotic dancing!
A few weeks after Kell in a case in which I also acted for the Board, Carmunnock
Village Recreation Club v. City of Glasgow Licensing Board, heard and decided
on 9 July 2010, the Sheriff Principal was asked to consider an appeal brought about in
a variation case. There the club had enjoyed opening to 1 o’clock in the morning on a
Friday and Saturday for around 30 years. Their hours were cut back on transition in
accordance with the new Board policy to 12 midnight and a variation application was
brought to restore those hours.
The Board refused that application on crime
preventions and public nuisance grounds.
25
There was no suggestion that the premises actually caused crime and disorder, nor
was there any suggestion there was any nuisance issue. The Board rested its decision
on policy which was to the effect that these hours were the latest and should be
permitted in a village in a conservation area. It also placed weight on the fact that in
terms of Board policy where premises had a dedicated function suite – as here – the
appropriate course was to consider applications for occasional extensions on their
merits.
After hearing argument the Sheriff Principal from the bench gave a decision in favour
of the Board. I understand that the Board have asked the Sheriff Principal to issue a
judgment although there will be no appeal in this case. The judgment may be helpful.
However in essence from the bench his view was that the Board had again consulted
on a policy and had been entitled to change their position. The absence of actual
evidence of crime or the like was only one factor. The Board was entitled to give
greater weight to their policy. It is clear that they had listened to the case for an
exception being made but he considered that the proper balance was struck.
His decision seems to give a strong hint that where the Board on advice received on
consultation considered that particular hours are appropriate – as for example based
on possible policing needs – the policy will usually have determinative weight.
On 30 July 2010 similar arguments were heard in the case of Drinkcafe Limited v.
City of Glasgow Licensing Board, 2011 SLT (Sh Ct) 50 before the then Sheriff
Scott. There it was a nightclub that had their hours cut back to 2am on conversion
from 3am under the 1976 Act. The club is situated in the West End of Glasgow but if
it had been in the city centre it would have enjoyed later policy hours of 3am. Again
there were no problems with the premises and no objections.
In arguing for the Board I put forward the line that I had advanced in Carmunnock
and Kell . Robert Skinner who acted for the nightclub maintained the position he had
taken up in Brightcrew and Kell that there was simply no factual basis for the
Board’s decision and the policy is not the test of inconsistency.
26
This is likely to prove an important decision for both Boards and operators. In my
view the logic of the position taken up by the court in Kell and Carmunnock is that
because policy can be seen as an expression of the licensing objectives it is for an
operator to show that they can be treated as an exception to the policy and that in so
doing the objectives will not be undermined.
Much of the debate in Drinkcafe focused on the fact that as a matter of fact there
were no problems with these premises. However the reasoning of the Board was
based on the views received in consultation that a 3am/2am divide was necessary for
the proper management of police resources as between the City Centre and other parts
of Glasgow. In other words even if there were no problems with the specific premises
the grant of an application for later hours for them could have a knock-on effect
elsewhere as inevitably police resources may have to be reallocated in a different way
because the very fact that a nightclub would be open later in the West End was likely
to have some consequences in terms of policing. On that view those were the “facts”
upon which the Board relied and that the grant of hours in excess of policy could
undermine the rationale for the policy.
This is not necessarily a new position.
Under the 1976 Act in Cinderella’s
Rockafella’s Limited v. City of Glasgow Licensing Board, 1994 SCLR 591 in the
Court of Session Lord Prosser held that a Board was entitled to have a general policy
on hours including a curfew condition even if that policy meant that both good
operators and bad operators were caught by it. Such a policy could be supported on
the grounds that it assisted in policing.
Sheriff Scott delivered his decision on 9 September 2010. He upheld the decision of
the Board. I attach a copy of his decision. He accepted the line that the Board was
entitled to have regard to “the bigger picture” in Glasgow. Even if there were no
problems with the applicant premises, the Board was entitled to apply policy hours.
Nothing had been said to justify an exception to policy.
The Drinkcafe case was appealed but the appellants have abandoned that appeal.
27
Following these cases a similar result to Drinkcafe was arrived at by the Sheriff
Principal in another variation of hour’s case, Wwmc Limited v Renfrewshire
Licensing Board, 3 November 2010. There a policy difference on hours based on
the provision of entertainment-which if given would in general secure longer hours-as
opposed to premises which did not provide entertainment was supported by the Court.
The Sheriff Principal was satisfied that the difference could be supported with
reference to the licensing objectives.
In Greene King Brewing & Retailing Limited v. Dundee City Licensing Board,
24 February 2011, Dundee Sheriff Court, Sheriff Principal Dunlop QC refused
an appeal brought by Greene King against the decision of the Dundee Board to refuse
a variation application.
Greene King operates the Old Bank Bar. They sought to alter their hours on Mondays
to Saturdays from 11am to 12 midnight to an earlier opening time of 10am but earlier
closing time of 11pm. This was the first application received by the Board which
sought to depart from the start time of licensed hours at 11am which operates
throughout Dundee (with the exception of off-sales).
The Board policy is that standard licensed hours for premises of the type in question
should not exceed 13 hours and that such premises should be permitted to remain
open to 12 midnight.
Notwithstanding the reduction in terminal hour the Board refused the application
under reference to Section 30(5) (b) on the footing that it would be inconsistent with
the public health objective. The reasoning of the Board was that the application
would set a precedent whereby 10am opening hours would be perceived as being
acceptable and would effectively extend the range of hour’s operations of this kind
could have to 14 hours. It was noted that the patrons of the premises would not be
restricted to remaining there but could easily move on somewhere else with a terminal
hour of midnight. In other words they could start drinking earlier in the day and go
somewhere else after closing at 11pm.
28
The decision was attacked on a number of grounds. The appellant’s solicitor argued
under reference to Kell that the decision was not obviously based on policy and was
unsupported by sufficient evidence and so was vulnerable to attack on the basis of
Leisure Inns (UK) Ltd.
He also submitted the reasoning of the Board was
inadequate because it was not clear why there would be any inconsistency with public
health.
It was also argued that it was wrong of the Board to take the point that patrons could
move on elsewhere. It was pointed out that there were premises operating beyond
midnight in any event even with the existing hours of the premises and there was
nothing to stop patrons of the premises as already operated moving on to later opening
premises and continuing to drink there. The point was also made that off-sales could
open at 10am.
The argument for the Board was that although the premises would not be open for
longer than 13 hours, the earlier opening time would indirectly undermine the
policy and against the policy which must be taken to promote the licensing objectives
there would arise an inconsistency. Reliance was placed on Drinkcafe and also
Brightcrew to support the line that the Board could have regard to the wider impact
of a variation application on the Board’s area and also that the Board enjoyed a very
wide discretion.
The Sheriff Principal considered that when the Board referred to the application
setting a “precedent” this was a reference to the earlier opening time which could cut
across the Board’s 11am policy given that in policy terms the usual closing time for
premises of the type in question was 12 midnight. His view was that to grant the
application could create potential for other premises to seek a 10am opening time thus
creating scope for 14 hours or trading.
Accordingly he was satisfied that the Board had given adequate reasons for the
decision. As for the question of whether the material before the Board was sufficient
to justify the conclusion reached, his view was that proper starting point was the 13
hour policy. His view was that although the policy was specifically directed at the
opening hours of individual premises, the policy reflected a more general view of the
29
Board that 13 hours was the period of time over which they considered it reasonable
for alcohol to be available for premises of this kind looked at as a whole and if the
overall effect of this application was to make alcohol available for this type of
premises over a more extended period the policy objective would be undermined.
He noted that the selection of 13 hours was a policy decision of the Board and given
the provisions of Section 6(3) of the Act the policy was presumed to promote the
licensing objectives set out in Section 4. Under reference to Kell he made the point
that the policy has a wide effect and it was proper to presume that it promoted the
objectives. In view of Kell no further justification of the policy had to be addressed.
Taken as a whole this case seems to support the line that indirect impact on Board
policy is still relevant to the question of whether the licensing objectives might be
infringed.
It again stresses that the Board has a wide area of judgment and in
particular gives some support to Boards who wish to approach matters on the footing
that to grant one application could lead to applications by others which could have the
potential to undermine the policy.
This point should not perhaps be taken too far. Each case must still be considered on
its merits and floodgates arguments are often beguiling in their simplicity but not
always supported by the courts.
In Greene King Brewing & Retailing Limited v. North Lanarkshire Licensing
Board, 23 December 2010, Hamilton Sheriff Court, Sheriff Powrie, Greene King
applied to vary the hours for premises known as the “Horseshoe Bar” in “Coatdyke”.
Under existing hours they are permitted to trade from the premises at 11am Monday
to Saturday but only from 12.30 on a Sunday. They sought 11am opening on a
Sunday.
These are the policy hours adopted by the Board under its Section 6 policy. There
were no objections but there was a response from the Chief Constable by way of a
letter. To that the appellants offered a condition that the premises would not open
until 12.30 on any Sunday when Celtic and Rangers were playing, this to
comment from the police.
30
meet a
Again the Sheriff upheld the reasoning of the Board. She followed the “Glasgow
cases.” In essence the appellants knew that the policy of the Board was based on
crime and disorder concerns. They had listened to the case for an exception but in the
exercise of their wide powers were entitled to apply the policy and not make an
exception to it.
The emerging case law suggests that where a Board approaches a variation of hours
against a policy background then provided that the Board listens to a case for an
exception being made a refusal based on objective grounds is likely to be supported
by the court. Whether this emerging line will be approved by the Inner House in the
forthcoming appeals remains to be seen.
Applying Brightcrew one can see that 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.
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 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 in Brightcrew. This is, I
think different, from England and Wales in view of Chorion case [2002] EWHC
1104 (Admin); [2002] LLR 538
31
This suggests the 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.
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
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.
BUZZWORKS-OVERPROVISION CLARIFIED?
In Buzzworks Ltd v South Ayrshire Licensing Board and JD Wetherspoon plc
[2011] CSOH 146, 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 v Aberdeen
City Licensing Board, 24 June 2010 case and what the Sheriff Principal said about
the objectives. One of the challenges brought is that a Board is still entitled to refuse
32
on overprovision grounds whether or not there is inconsistency with the objectivesotherwise 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 was 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
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
33
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 example by the House of Lords in Caledonian Nightclubs Ltd v City of
Glasgow Licensing Board 1996 SC (HL) 29).
34
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.
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
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
35
a “superpub”, it might wish to consider that point whether or not if featured in any of
the objections that might be made.
The decision of the Board also fell down on the basis they had not given adequate
reasons why they had preferred JD Wetherspoon over the objectors. Applying Ritchie
v Aberdeen City Council [2011] CSIH 22 they gave “no clue” as to why the
decision that there was no inconsistency was reached.
On the delay point the Court held that in the circumstances the petitioners had not
delayed matters unduly. JD Wetherspoon had been well aware that legal action was a
possibility. The case does mean that objectors are not stuck with the time limit
imposed under the Sheriff Court appeals rules, but they do still need to move
reasonably quickly.
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.
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.
36
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.
In my view there is 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
37
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
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
38
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.
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
39
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.
LIDL-TEST PURCHASING AND CRIME AND
DISORDER
The Lidl case is the current “big thing” in review of premises licence in under age
sales. It was a news item on the Institute of Licensing email a few months back. I
acted for the Glasgow Board.
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.
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.
40
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.
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.
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
41
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.
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
42
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.
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.
43
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 an allegation of underage sale was made, 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.
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
44
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.
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.
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.
45
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 post dated 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
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
The “GARAGE” appeals
I will now look at section 123 and excluded premises. Section 123 provides as
follows:
123 Excluded premises
(1) No premises licence or occasional licence has effect to authorise the sale of alcohol
on excluded premises.
(2) For the purposes of this Act, “excluded premises” means—
(a) premises on land—
(i) acquired or appropriated by a special roads authority, and
(ii) for the time being used,
for the provision of facilities to be used in connection with the use of a special road
provided for the use of traffic of class 1 (with or without other classes), and
(b) subject to subsection (5), premises used as a garage or which form part of
premises which are so used.
(3) For the purposes of subsection (2)(a)—
46
(a) “special road” and “special roads authority”have the same meanings as in the
Roads (Scotland) Act 1984 (c.54), and
(b) “class 1” means class 1 in Schedule 3 to that Act, as varied from time to time by
an order under section 8 of that Act, but, if that Schedule is amended by such an
order so as to add to it a further class of traffic, the order may adapt the reference in
this section to traffic of class 1 so as to take account of the additional class.
(4) For the purposes of subsection (2)(b), premises are used as a garage if they are
used for one or more of the following—
(a) the sale by retail of petrol or derv,
(b) the sale of motor vehicles, or
(c) the maintenance of motor vehicles.
(5) Despite subsection (2)(b), premises used for the sale by retail of petrol or derv or
which form part of premises so used are not excluded premises if persons resident in
the locality in which the premises are situated are, or are likely to become, reliant to a
significant extent on the premises as the principal source of—
(a) petrol or derv, or
(b) groceries (where the premises are, or are to be, used also for the sale by retail of
groceries).
(6) The Scottish Ministers may by order amend the definition of “excluded premises”
in subsection (2) so as to include or exclude premises of such description as may be
specified in the order.
In the now celebrated case of “two old ladies”, Co-operative Group Ltd v.
Aberdeen City Licensing Board [2009] 41 SLLP 16, the appellants argued in the
relevant grounds of appeal that:
“1. The Licensing Board erred in law in that it applied the wrong test to the
consideration of the application. The test which it ought to have applied in
considering whether the application premises were "excluded premises" for the
purpose of section 123 of the Licensing (Scotland) Act 2005 was whether "persons
resident in the locality in which the premises were situated are or are likely to
become, reliant to a significant extent on the premises as the principal source of
petrol or derv or groceries".
The test which the Board did apply was whether "the
community as per the plan provided by the Clerk was reliant on the premises as a
principal source of either fuel or groceries".
3.
Separatim, the Board erred in having regard to the fact that "the community
was part of Aberdeen which is the third biggest city in Scotland and provides these
resources ...... (i.e. for fuel or groceries) ...... in abundance. For example, within 2km
there are two large supermarkets and ample filling station premises". The test was not
whether there were other premises in Aberdeen available for the provision of petrol,
derv or groceries. It was whether persons resident in the locality were in fact reliant
to a significant extent on the application premises as a principal source of these
commodities.
4.
Further the Board erred in applying the statutory test in that they took into
account the number of licensed premises within the "locality" rather than those
providing fuel or groceries.”
47
The Sheriff Principal accepted there was merit in those grounds. He said:-
“[9] In my opinion the submissions for the appellants are to be preferred. The
question which the Board had to consider under reference to section 123(5) was
whether it had been established that persons resident in the locality in which the
premises were situated were, or were likely to become, reliant to a significant extent
on the premises as the principal source of petrol, derv or groceries. The Board
decided that this question should be answered in the negative, and their reasons for
doing so can be seen in the second and third last paragraphs of the statement of
reasons. In my opinion these paragraphs disclose two clear errors of law. In the first
place the Board were plainly influenced by the fact that that there were six other
licensed premises in the vicinity. That may be so, but it is entirely beside the point of
the question which is posed by section 123(5) which has nothing to say about licensed
premises but which, on the contrary, directs attention to the question whether the
premises in question are the principal source of petrol or derv or groceries (not, be it
noted, liquor). Moreover, it is equally nothing to the point that the community
(whatever precisely that may have been considered by the Board to mean) may not be
reliant on the premises as a principal source of either fuel or groceries. As indicated,
the question the Board had to consider was whether as a matter of fact persons
resident in the locality in which the premises were situated were, or were likely to
become reliant to a significant extent on the premises as the principal source of petrol
or derv or groceries. I have emphasised the words "persons resident in the locality"
since these are the persons who matter here, and not the local community as a whole.
It is not even necessary that all the residents in the locality should be, or be likely to
become, reliant to a significant extent on the premises as a principal source of petrol
or derv or groceries. All that is required here to satisfy the test is that there are some
persons (for example elderly persons who are unable to drive or, as counsel
suggested, the residents of a sheltered housing scheme) who as a matter of fact are, or
are likely to become, so reliant on the premises.”
By contrast although allowing the appeal in ROC UK Ltd v. City of Edinburgh
Licensing Board, 25 January 2010, Sheriff Principal Bowen QC did not follow the
Aberdeen/Glasgow line. He gave a far narrower reading to section 123(5) and
focussed on the premises rather than on those who might use them. He had this to say:
“13. The nature of the test to determine whether to apply the exception contained in
section 123(5) of the 2005 Act is neither wholly clear nor free from controversy. As
counsel for the appellants pointed out in the Aberdeen case Sheriff Principal Young
was of the view that: "All that is required here to satisfy the test is that there are some
persons (for example elderly persons who are unable to drive or, as counsel
suggested residents of a sheltered housing scheme) who as a matter of fact are, or are
likely to become so reliant on the premises". That view was followed by Sheriff Scott
in the Glasgow case. However, in the case of BP Oil (UK) Limited against the present
respondents decided on 22 December 2009 I have preferred the view that the focus of
section 123(5) is not on a handful of individuals but is on the premises, the question
being whether there is a significant decree of reliance on them by persons resident in
48
the locality when viewed as a group (see paragraph 33 of that judgment). That view
necessarily undermines in part the first set of submissions advanced by counsel for
the appellants in the present case.
14. I further accept the validity of the distinction commented on by counsel for the
Board between questions which may have arisen under section 39 of the 1976 Act and
those which arise under section 123(5) of the 2005 Act. If a Board is told that it must
give a licence unless there is over provision in a locality it is obvious that the starting
point for the task is to determine what the locality is. On the other hand in cases
where section 123(5) is founded on it is not inconceivable that there will be situations
where there is no evidence of any persons being reliant on the premises. Should that
be the position there would be no need to seek to define "the locality" as a starting
point. I accordingly agree with counsel for the Board that there requires to be a
positive basis for the view that section 123(5) applies before it would be necessary for
the Board to define "locality". I also tend to the view that it may not be necessary to
define "locality" with the same degree of precision for the purposes of section 123(5)
as it would be in a question of over provision, but in most cases it will be necessary
for a Board to have at least a general view of what the relevant "locality" is.
15. Before turning to consider whether the "positive basis" for the application of
section 123(5) existed, I turn to deal with the proposition that the Board failed to give
proper and adequate reasons for its decision. The brief statement given in the
statutory Statement of Reasons "The Board was not satisfied on the information
supplied that the premises are relied on to a significant extent by local residents as
the principal source of petrol and groceries" is intelligible as a conclusion in law, but
goes nowhere to explaining why that conclusion was reached on the information
provided. For that one has to turn to paragraph 9(a) of the Stated Case. So far as that
is concerned I find most unsatisfactory the sentence which reads: "In the overall
context of the area which was known to the Board and in respect of which there were
alternative facilities it was inconceivable that the premises were not excluded
premises". It is difficult to know what to make of this pronouncement. The premises
were excluded premises, not because of the "area" or the existence of alternative
facilities, but by operation of law. The question which the Board had to consider was
whether it had been demonstrated that the exception contained in section 123(5) fell
to be applied. This expression of the Board's position raises a question as to whether
it asked itself the right question.
16. If the observation quoted above is to be taken as meaning that it was
inconceivable that persons resident in the locality were reliant to a significant extent
on the premises as a principal source of petrol or derv or groceries, I would regard it
as both extreme and unwarranted. "Inconceivable" is a strong term to use in a
situation where two members of the Board appear to have concluded that the
provisions of section 123(5) are met. The view is unwarranted in a situation where
there was evidence before the Board that this was a "local" petrol station and was the
only "store" open in the north of the city after 10pm. Nothing is said to justify a
rejection of these factors as providing a basis for the application of the section 123(5)
exception.
17. It is not, I have to accept, easy to identify with precision the sort of factors which
might lead a Licensing Board to conclude that persons resident in the locality of a
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garage shop are, or are likely to become, reliant to a significant extent on the
premises in the sense which I perceive section 123(5) to mean. Determination of that
may depend partly on impression, but inevitably on inferences to be drawn from all
the circumstances presented. The question of whether premises are relied on to a
significant extent by a group of persons is not one which can be decided by asking an
individual if he or she is reliant on the premises "to a significant extent". Moreover,
whatever "reliance" means, for the purpose of this section, it cannot mean total
dependence; anyone in Scotland who lives within range of a Tesco home delivery
service is not totally dependent on a garage shop for groceries. It follows that the
mere existence of alternative facilities cannot exclude the operation of section 123(5);
it is all a question of degree.
18. In my judgment the two factors I have mentioned in paragraph 16 above, and
other factors such as the high volume of food retail sales at the application premises,
were factors from which it might well have been inferred that there was a high degree
of reliance on them. It was for the Board to determine whether this was as a result of
passing trade or whether it should be attributed to "local" usage. In that respect the
questionnaire presented to the Board appears to me to have been at the very least of
relevance. The existence of alternative grocery facilities, as I have indicated, did not
necessarily exclude the necessary degree of reliance for those commodities; but even
if the Board concluded that it did, section 123(5) in terms contemplates the licensing
of premises where these are relied on as a principal source of fuel. It would appear
that these premises serve as the only fuel station in a significant part of the city. It is
not clear that the Board had any regard to that or to what reliance local residents, as
a group, might place on that.
19. The appellants having presented to the Board a positive basis for the application
of section 123(5), it was in my judgment incumbent upon the Board to consider the
question of locality. There is no clear indication that it did so. The position in this
case is in contrast with that in the BP case which I decided previously. In that case
the Board accepted as found facts that within a one mile radius of the premises there
was one other petrol filling station, one supermarket and two grocers/convenience
stores. It also accepted that 62 persons who were referred to in a market research
report as relying on the premises as a principal source of petrol or derv or groceries
were resident within that one mile radius. It was thus clear that the Board had
regarded this as "the locality" and were justified in concluding that there was
insufficient evidence of usage of the premises to a significant extent by persons
resident in that locality.
20. In these circumstances I am satisfied that on any view the third question in the
Stated Case "Did the Board exercise their discretion in an unreasonable manner by
failing to provide adequate reasons for their decision to refuse the application?"
requires to be answered in the affirmative. The fourth question in law which relates to
rejection of the questionnaire as of being "no assistance" also falls to be answered
similarly. I am not satisfied that the Board applied section 123(5) correctly, and
questions 1 and 2 of the Stated Case also fall to be answered in the affirmative. I
accordingly sustain the appeal.
21. In the event of the appeal being sustained counsel for the appellants urged me to
exercise the discretion granted in terms of section 131(5) of the 2005 Act by granting
50
the application rather than remitting it to a Licensing Board for reconsideration. He
based this submission in part on the contention that the section 123(5) test was bound
to be met because it was inevitable that some persons resident in the locality of the
application premises would be reliant on them to a significant extent as these were the
only premises open for a substantial proportion of the day. The test which that
proposition embraces is one which as I have indicated, I do not accept. Secondly he
indicated that the City of Edinburgh Licensing Board had set its face against garage
premises within the City being granted licenses and had to date granted none. He
referred to the remarks of the sheriff in Botterills of Blantyre (at page 16B) which met
with approval from the Second Division where it is stated: "I would have thought it
very difficult for the respondents with the best will in the world to re-examine this
application with complete detachment; and if they were to refuse it again, as they well
might, it would be supposed that such a decision was predictable. I do not therefore
consider that it would be appropriate to ask the Board to re-consider the application,
I am satisfied that the proper course is to remit back to the Board with a direction to
issue a certificate to the applicants in the terms applied for."
22. Counsel for the Board referred to Matchurban Limited v Kyle and Carrick
District Council 1995 SLT 505 and to the observations of the Court (at page 506I) to
the effect that where Parliament had decided that decisions on licensing matters
should be taken by a local licensing authority there would need to be "compelling
reasons for removing from such an authority responsibility for taking such decisions".
He accordingly invited me in the event of upholding the appeal to remit the matter to
the Board for re-consideration.
23. With a measure of hesitation I have decided that it is appropriate to remit the
matter to the Licensing Board as their counsel requested. I have determined that this
is appropriate for two reasons. In the first place, on a strict reading of the Stated
Case there are few facts on which I could base a decision to grant a license. As I have
indicated all that is recorded as findings in fact are those contained in paragraph 3 of
the Stated Case which relate to the nature of the premises themselves and the hours of
opening. Whilst paragraph 6 refers to submissions which were "not contradicted"
there is some doubt in my mind as to whether what is contained therein could be
regarded as findings. Secondly, it does not appear to me that the matters which I
consider to be significant could necessarily be regarded as conclusive of the
requirements of section 123(5) having been established. The Board will no doubt wish
to bear in mind my observations on the significance of various factors which appear
to be relevant and to the fact that reliance on the premises as a principal source of
fuel is a distinct basis upon which an application may be granted. The Board will also
bear in mind that evidence of alternative facilities is not in itself conclusive. The
matter is nevertheless one for the ultimate determination of the Licensing Authority.”
The matter came before the Inner House in two appeals, BP Oil (UK) Ltd v. City of
Glasgow Licensing Board and BP Oil (UK) Ltd v. City of Edinburgh Licensing
Board [2011] CSIH 29. There the Inner House had to grapple with the emerging
lines. This is the formulation that was arrived at-
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“[51] Recognising that we have to deal with an unquestionably difficult legislative
provision, and having regard to the general nature of the policy apparently
underlying the provision, we have come to the view that what the language of subsection (5) envisages is that there be a recognisable number of persons in the locality,
not necessarily constituted as a group, who as a matter of their purchasing habits see
and treat the shop premises in question as the principal source from which they may
in ordinary course obtain either groceries or fuel and who would properly consider
themselves materially disadvantaged or inconvenienced were that shop not to provide
those retail facilities. In judging that matter, evidence of alternative retail outlets for
groceries or motor fuel (or the local knowledge of the licensing board to that effect) is
plainly not excluded; but the existence of some alternative facilities within the locality
will not in itself prevent the giving of a positive answer to the question. We appreciate
that in what we have just said we may be seen as "glossing the statute"; but given the
recognised unclarity of the text, we think we have little alternative but so to express
ourselves in deciding these appeals and endeavouring to discern the proper sense in
which the legislature should be held to have intended the phraseology which it
deployed.”
Irresponsible promotions
Schedule 3 of the 2005 Act provides as follows in terms of paragraphs 7, 7A and 8:
7 Where the price at which any alcohol sold on the premises [ for consumption on the
premises]1 is varied—
(a) the variation (referred to in this paragraph as “the earlier price variation”) may be
brought into effect only at the beginning of a period of licensed hours, and
(b) no further variation of the price at which that or any other alcohol is sold on the
premises [ for consumption on the premises]1 may be brought into effect before the
expiry of the period of 72 hours beginning with the coming into effect of the earlier
price variation.
7A Where the price at which any alcohol sold on the premises for consumption off the
premises is varied—
(a) the variation (referred to in this paragraph as “the earlier price variation”) may be
brought into effect only at the beginning of a period of licensed hours, and
(b) no further variation in the price at which that alcohol is sold on the premises may
be brought into effect before the expiry of the period of 72 hours beginning with the
coming into effect of the earlier price variation.
8
(1) An irresponsible drinks promotion must not be carried on in or in connection with
the premises.
(2) Subject to sub-paragraph (3), a drinks promotion is irresponsible if it—
(a) relates specifically to an alcoholic drink likely to appeal largely to persons under
the age of 18,
(b) involves the supply of an alcoholic drink free of charge or at a reduced price on
the purchase of one or more drinks (whether or not alcoholic drinks),
(c) involves the supply free of charge or at a reduced price of one or more extra
measures of an alcoholic drink on the purchase of one or more measures of the drink,
(d) involves the supply of unlimited amounts of alcohol for a fixed charge (including
any charge for entry to the premises),
52
(e) encourages, or seeks to encourage, a person to buy or consume a larger measure
of alcohol than the person had otherwise intended to buy or consume,
(f) is based on the strength of any alcohol,
(g) rewards or encourages, or seeks to reward or encourage, drinking alcohol quickly,
or
(h) offers alcohol as a reward or prize, unless the alcohol is in a sealed container and
consumed off the premises.
(3) Paragraphs [(c) to (e)]1 of sub-paragraph (2) apply only to a drinks promotion
carried on in relation to alcohol sold for consumption on the premises.
(4) The Scottish Ministers may by regulations modify sub-paragraph (2) or (3) so as
to—
(a) add further descriptions of drinks promotions,
(b) modify any of the descriptions of drinks promotions for the time being listed in it,
or
(c) extend or restrict the application of any of those descriptions of drinks promotions.
(5) In this paragraph, “drinks promotion” means, in relation to any premises, any
activity which promotes, or seeks to promote, the buying or consumption of any
alcohol on the premises.
In Mitchells & Butlers plc v. Dundee City Licensing Board, 6 December 2010,
Dundee Sheriff Court, Sheriff Principal Dunlop QC held that a discount card
scheme did not fall foul of the “happy hours” control in paragraph 7 of Schedule 3 to
the 2005 Act. The Board had made the following findings of fact.
“The appellants are the holders of a premises licence for the Nether Inn, 134
Nethergate, Dundee DD1 4ED;
2. There is in operation at the premises a "discount card" scheme for students
allowing them, upon obtaining a card, to enjoy a discount on alcoholic drinks
at the premises;
3. The discount is not available to customers who do not possess a card;
4. There is during any 72 hour period a mixture of card holders and non card
holders on the premises;
5. The discount card scheme is not limited by time and the price differential
between card holders and non card holders is fixed so that the two categories
of prices remain the same over any 72 hour period."
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The Sheriff Principal had this to say:-
“[8] The starting point in the application of paragraph 7 is "the price at which any
alcohol is sold." In itself that phrase says nothing about whether individual alcoholic
products must be sold at a uniform price and the lounge bar/public bar distinction
referred to by counsel is an example of circumstances in which one might readily
expect such a differential pricing structure to exist within the same licensed premises.
Nor in my opinion is there anything in the wider provisions of paragraph 7 which
precludes differential pricing of individual products. Rather the focus of attention is
the variation of an existing price within a prescribed period of time. Thus at the
beginning of a period of licensed hours the question is what are the prices prevailing
or set at that time and it is nothing to the point that there may be different prices for
the same product. But once the prices have been set, even if different prices for the
same product, it is those prices which may not be varied within a period of 72 hours
thereafter. In my view that construction reflects the natural meaning of the words
used in paragraph 7 but in any event is consistent with what I consider to be the
underlying purpose of this provision as reflected in the various parliamentary
comments and explanatory notes to which counsel referred, namely the avoidance of
circumstances in which people are encouraged to consume in a shorter period of time
a larger amount of alcohol than they would otherwise consume. In other words it is a
measure aimed at discouraging "binge drinking".
[9] As finding in fact 5 makes clear, the price differential between card holders and
non card holders is fixed so that the two categories of prices remain the same over
any 72 hour period. It follows that in my opinion there has been no unlawful variation
of prices in breach of the provisions of paragraph 7 of schedule 3 and that
accordingly the first question in the stated case ought to be answered in the
affirmative. In these circumstances question 2 does not arise.”
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© SCOTT BLAIR, ADVOCATE
AUGUST 2012
Ref WB/SB
About Scott Blair
Scott Blair is a Scottish advocate which corresponds to the role of a
barrister.
Scott can be contacted on [email protected]
Scott is a member of the Murray Stable (Chambers) of Advocates –visit
them on 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 a 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 co-opted 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
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range of areas including liquor licensing, betting and gaming and cases
under the Civic Government (Scotland) Act 1982.
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, Coral (Scotland)
Ltd, William Hill Organisation.
He also acts for a range of smaller operators and also Licensing Boards
including the largest Scottish Boards (Glasgow and Edinburgh) and
also 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
56
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.
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).
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.
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.
He also acts in cases under the Gambling Act 2005 and current and
past clients include the William Hill Organisation Ltd, Tote and Corals.
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