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Case Reference Number:
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B423/06
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SHERIFFDOM
OF TAYSIDE, CENTRAL AND FIFE AT
KIRKCALDY
JUDGMENT OF SHERIFF WILLIAM HOLLIGAN
in causa
PURSUERS ALLDAYS STORES LIMITED, Robert Owen
House, 87 Bath Street, Glasgow and
PAMELA GREIG, 12 Glen Lyon Road,
Kirkcaldy
against
DEFENDERS CENTRAL FIFE DIVISIONAL LICENSING
BOARD, Town House,
Kirkcaldy, Fife
Act: Skinner Alt: Blair
KIRKCALDY, September
2007. The sheriff, on resuming
consideration of the cause, having heard counsel for the parties, counsel for
the defenders not opposing, sustains the pursuers' first plea in law and repels
the defenders' first, second, third and fourth pleas in law, ALLOWS the appeal;
on the opposed motion of the defenders sustains the defenders' 5th
plea in law; REMITS the case to the defenders for reconsideration of their
decision ; RESERVES all questions of expenses and APPOINTS parties to be heard
thereon on Thursday, 11 October 2007 at
10.00 am within the Sheriff Court House, Whytescauseway, Kirkcaldy.
NOTE
[1] In
this summary application, two pursuers ("the first pursuer" and "the second
pursuer") appeal against a decision of the defenders, Central Fife Divisional
Licensing Board ("the Board") taken on 6 November 2006 ("the decision") in
which the Board suspended the off-sales licence held by the pursuers relative
to the premises known as Scottish Co-op, 7 Cadham Centre, Glenrothes ("the
premises"). The suspension in relation
to each of the pursuers was for a period of three months.
[2] The
Board issued a statement of reasons dated 16 November
2006 ("the reasons") (Production No.1). There was an error in the reasons in relation
to the designation of the first pursuers which was later corrected. Nothing turns upon that error.
[3] There
does not appear to be any factual dispute as to proceedings before the Board on
6 November 2006, nor indeed as to
the basic facts relied on by the Board in deciding to suspend the
licences.
[4] Mr Skinner,
counsel for the pursuers, advanced a number of grounds in support of the
appeal. In his reply, Mr Blair,
counsel for the Board, accepted that the appeal should be allowed. The issue between the parties was what I
should do in relation to the matter, given that it was conceded the appeal
should be allowed. In view of the
submissions put to me, it is necessary that I set out a brief summary of the
proceedings before the Board; the grounds of appeal; and the basis upon which
it was conceded the appeal should be allowed.
[5] The
proceedings before the Board were convened following a complaint submitted by
the Chief Constable pursuant to section 31 of the Licensing (Scotland) Act
1976 ("the 1976 Act"). The complaint
related to the sale of alcohol at the premises on two occasions to persons
aged 16 (I will refer to these as the "underage sales"). The first underage sale took place on 1 July 2006 and the second on 28 July 2006.
The first underage sale was made as part of a test purchasing scheme
introduced pursuant to section 105 of the Licensing (Scotland) Act 2005. That sale was made by an employee of the
first pursuers and took place within the premises. The circumstances surrounding the second sale
were less clear. Police officers spoke
to youths in the car park outside the premises, one of whom had a bottle of alcohol. In short, it was said that the alcohol had
been purchased by a 16 year old in the premises. The first pursuers accepted that the underage
sale had taken place on the premises, or at least did not dispute that it had
taken place. In relation to the first
underage sale, the employee concerned was subject to an internal inquiry. She accepted that she had acted contrary to
the first pursuers' policy on the sale of alcohol. She resigned from her employment. Had she not done so, she would have faced
disciplinary action. In relation to the
second underage sale, given the uncertainty as to the factual position as
identified by the first pursuers, no disciplinary action was taken.
[6] The
pursuers were legally represented on 6 November
2006. Production No.2
is a copy of the submission presented to the Board on that day ("the
submission"). There were two handwritten
items in the submission (both on page 12 thereof) read to the Board. As they are difficult to read in the copy,
Mr Skinner narrated their terms:
"Item 23 at 23.6 of the papers before the Board indicates she
refused a sale that night at 21.57 and the following day at 21.53"; and "On
28 July it is recorded she refused two sales for lack of identification as
well as twice on the previous day." (These are references to the conduct of one
of the employees.)
[7] I
do not think it is necessary for me to set out all that was contained within
the submission and read to me by Mr Skinner. I summarise the position as follows. The first name pursuer is a member of the Co-operative Group (CWS) Ltd and that Group is
a member of the Retail Alcohol Standards Group ("RASG") which is concerned inter alia with preventing the misuse of
alcohol. The RASG appears to be a UK wide body which
has, in consultation with the Home Office, introduced initiatives to prevent
the sale of alcohol to those underage.
[8] The
first pursuers have a system designed to prevent the sale of alcohol to those
underage, together with an extensive system of staff training. In short, the system is designed to prevent
the sale of alcohol to those under the age of 21 without the purchaser
providing adequate proof of identity.
There is signage throughout the stores detailing the policy. Staff are regularly reminded of their responsibilities
when first using an electronic till.
There is also a system to log certain transactions concerning
alcohol. A presentation was made to Fife
Constabulary explaining the procedures for the sale of alcohol undertaken by
the first pursuers. There is also a
system of internal test purchases carried out by the Group so as to ensure
compliance with their policies and procedures.
[9] Following
the underage sales the first pursuers reviewed the training records of both
employees concerned in the underage sales.
It is sufficient to say it was established that both employees had been
trained. The first employee was
relatively new and appears to have started employment in or about the middle of
June 2006. There was material to show
that both employees had refused to sell alcohol on the grounds of underage and
in the case of the second employee it was recorded that she had, in the period
from 12 January 2006 to 28 July 2006, refused some 157 age restricted
sales.
[10] In
addition to these submissions, further submissions were made to the Board in
relation to whether the pursuers were fit and proper persons to hold licences
and the question of suspension.
[11] Under
the heading of "Suspension", reference was made in the submission to the
absence of criminal proceedings and the statutory defences provided by
section 67(2) of the 1976 Act. I
was told that no criminal proceedings have ever been brought in relation to
these matters.
[12] Mr Skinner
referred to the reasons. The substance
of the Board's reasoning is set out on page 3. Pages 1 and 2 narrate the background and
the material before the Board. I note it
is recorded that evidence was led before the Board. Neither counsel made any reference to this
and I assume nothing turns on it. The
evidence appears to relate to the underage sales themselves. As I understand it, the fact of the underage
sales and the pursuers' factual account of their systems and procedures were
not disputed. The relevant parts of the Board's
reasoning are as follows:
"Notwithstanding that training, it
appeared to the Board that on the first occasion, the 16 year old test
purchaser had encountered no obstacles to the purchase of alcohol in your
clients' shop at the Cadham Centre and that notwithstanding her experience and
training, a member of staff on 28 July had sold alcohol to a 16 year
old.
The Board was not satisfied that
the training given to staff, nor the control exercised by your clients, was
sufficiently effective to prevent the sale of alcohol to young persons.
The Board was very concerned about
the sale of alcohol to young persons.
They noted Chief Superintendent Laing's response to a question that Fife suffers from the affects of
underage alcohol consumption. He added
that alcohol misuse was one of the main causes of costs to Health Boards and
that, as in most areas of Fife, there were calls to the police in relation to youth
disorder in the Cadham area.
The Board was of the opinion that
your clients, Alldays Stores Limited, control and monitoring of its training and
operational activities in relation to age related alcohol sales was deficient
and was not sufficiently effective to prevent sales of alcohol to 16 year
olds. The Board was of the opinion that
Alldays Stores Limited were not fit and proper persons to hold a licence. The Board was also of the opinion that your
clients Alldays Stores Limited, notwithstanding the amounts of training given
and operational procedures put in place, had not exercised due diligence in
carrying out their responsibilities as a licence holder in that the training
and processes were not sufficiently effective to prevent the two sales to
16 year olds described above.
The Board were also of the opinion
that the supervision and control of the staff and operational procedures in the
shop by Pamela Greig, the person in terms of section 11 of the Licensing
(Scotland) Act 1976 responsible for the day to day running of the premises, was
also deficient and that she was not a fit and proper person to be the holder of
a licence. The Board were also of the
opinion that notwithstanding her training and experience, these two sales to
16 year olds had taken place and that she had not exercised due diligence
in carrying out her responsibilities as a licence holder."
Legal submissions for the pursuers
[13] Mr Skinner
began his submissions by reference to the relevant statutory provisions. As I intend to set these out later in this
judgment I will not refer to them further.
Mr Skinner lodged a helpful written submission which is lodged in
process. As I have said, Mr Blair
did not resist the appeal, nor did he dispute much of the relevant legal
background. For these reasons I do not
propose to rehearse all of Mr Skinner's submissions in detail but it is
necessary for me to make some reference thereto. Mr Skinner put forward six separate
submissions:-
(1) In reaching their decision to refuse (sic)
the Board erred in law et separatim
exercised their discretion in an unreasonable manner in that they reached a
decision for which there was no proper basis.
In support of this proposition Mr Skinner referred to Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board
1993 S.L.T. 796 at 798 I-J; Hamid v City of Glasgow Licensing Board, July
1999 (unreported) Glasgow Sheriff Court, Sheriff J.K. Mitchell; and 2002 S.L.T.
193; Sohal v City of Glasgow Licensing Board 1999 12 S.L.L.P. 22; Baxter v Central Fife Licensing Board 1999 14
S.L.L.P. 32; Paton v Wilson 1988 S.L.T. 634 at 635 H-I. Mr Skinner submitted that behind every
ground of refusal there must be proper reasons and for those reasons there must
be a proper basis in fact. Before a
licence holder can have the draconian sanction of suspension visited upon them
due to unfitness caused by a particular event or events, it must be shown, in
commonsense terms, that they were to blame for the happening of these events
and that blameworthiness be of sufficient magnitude to render them not fit and
proper persons. Mr Skinner then
went through, in detail, the policies and procedures of the first named
pursuer. It was quite clear that the
sole basis for the finding of unfitness was the supposed inadequacy of the
system. There was no specific criticism
of the system itself. The sole basis for
the supposed inadequacy was that two sales to persons who turned out to be 16
had taken place. There was neither
suggestion as to how the system could be improved nor any clue as to what the
deficiency might be. It was perfectly
obvious that the system employed did work in that both sales assistants were
perfectly aware they should not sell alcohol to persons under the age of 18 and
it was equally clear that the sales took place because of errors of judgment by
properly trained assistants. As the case
of Paton v Wilson made clear, it was judicially recognised that an
individual around the age of 16 may present an appearance of either a younger
or older age than he or she in fact is.
(2) The Board erred in law in that they applied
to the applicants (sic) both company and nominated agent, the test of strict
liability. That was an error in
law. Mr Skinner referred to the
cases of Baxter, Sohal and Hamid. The mere happening of the act gave rise to
unfitness. That was not the correct
test.
(3) Further the Board did not seem to consider
whether the public interest would be served by suspension of the licence. Reference was made to section 31(1) of
the 1976 Act. The public interest was
expressly raised in the submission.
(4) The Board had erred in that they failed to
provide adequate reasons for their decision to suspend. The test for adequacy of reasons is that laid
down in Mirza v Glasgow Licensing Board 1996 S.C. 450. It is important for the licence holder to
know why their system was so unfit so as to remedy the defect in the
future.
(5) The Board also erred in that no reasons
whatsoever were given for the period of suspension chosen.
(6) The Board erred in that they exercised
their discretion in an unreasonable manner and failed to take account or at
least give adequate weight to a number of matters set out in Article 5 of
condescendence. Their conclusion was
unreasonable in the circumstances and if they did have regard to such
submissions they failed to explain in what way the systems in place or the
monitoring or control thereof was so deficient as to render the company no
longer a fit and proper person to be the holder of the licence.
[14] In
relation to disposal Mr Skinner made reference to section 39(6) of
the 1976 Act. The court has a discretion
to reverse the decision and quash the suspension or to remit the matter with
reasons to the Board for reconsideration of its decision. Mr Skinner's strong submission was to
the effect that the court should reverse the decision. It may be suggested that such decisions were
intended to be taken by local Boards and a remit should be granted (Matchurban Ltd v Kyle & Carrick Council 1995 S.C. 13). That approach was designed to protect the
public interest against a situation where the applicant may, for instance, gain
the windfall benefit of a reversal. Such
a situation may be where, for example, the Board have not expressed their
decision clearly but a clear public concern about the premises exists. In such a case it is appropriate that
decisions should go back. However,
Parliament also gave the court an unqualified discretion to reverse the
decision when it felt appropriate to do so looking at the whole
circumstances. If the court held there
was no proper basis for reaching the conclusion that it did then there would be
no point in remitting to the Board (Mr Skinner referred to Leisure Inns Ltd, Hamid and Sohal). There was no reasonable basis whatsoever for
holding that the pursuers were unfit to hold any licence. Secondly, attitudes had hardened. It was a reasonable inference that there is a
political background to this - see page 3 of the reasons. Also, the fact that in every single case in
which a report had been made by the police under Operation Spotlight, the Board
had suspended. There was a real flavour
of an unbreakable policy pour encourager
les autres (Botterills of Blantyre
v Hamilton District Licensing Board
1986 S.L.T. 14). Thirdly, the pursuers
may reasonably consider that they could not be confident the Board would
approach the matter freely and dispassionately.
They may simply scrutinise the system, looking to nit pick and to fasten
onto any conceivable lack of perfection in the system as an excuse to suspend
so as to achieve the aim of their policy.
Where there is any hint that a Board has an agenda beyond the dispassionate
consideration of the particular application, this was a basis for overturning
the decision. Fourthly, it was open to
the Chief Constable to raise a fresh complaint and to seek fresh suspension
proceedings and to take into account these incidents. The public interest was adequately protected.
Legal
submissions for the defenders
[15] Mr Blair
accepted there was not much difference on the law between the parties and it
was not his intention to go through all of the cases in detail.
[16] Mr Blair
accepted that there were difficulties in the approach of the Board. On the face of it, the Board did err in law
in that they failed to provide adequate reasons for the decision they
reached. He accepted that extended to
the determination as to whether the pursuers were fit and proper persons but
there were also related questions of public interest and the length of the
suspension. He also accepted that, given
the approach taken, it appeared that the
Board had applied a test of strict liability.
He accepted that there must be factors of fault in order to conclude
that a licensee is not a fit and proper person.
The Board's approach, on the question of strict liability was not
correct. The question at large is
whether the Board could, properly instructed, come to the view that the
pursuers were not fit and proper persons.
[17] Mr Blair
submitted that where there is a complaint under section 31 of the 1976 Act
which, prima facie raises fitness (as
a sale to any person under the age of 18 must always do) there is a practical
onus on the licence holder to deal with the complaint. He accepted the pursuers sought to engage
with the complaint made against them. In
support of that proposition Mr Blair referred to Chief Constable v North
Lanarkshire Licensing Board 2004 S.C. 304.
The Board were entitled to have explained to them the position of the
pursuers. The pursuers did make an
attempt to give such an explanation.
Mr Blair submitted that the strand which runs through the case law
is that the courts should defer to licensing Boards to whom decisions had been
entrusted by Parliament. Mr Blair
referred to Latif v Motherwell Licensing Board 1994 S.L.T.
414; Hughes v Hamilton District Council 1991 S.L.T. 628 and Matchurban Ltd v Kyle &
Carrick Council. These cases went,
in particular, to the question of remit.
The test as to remit, under section 39, is whether there is
material upon which the Board could reasonably consider as being relevant to
the fitness of the licence holder to hold a licence. There may be cases where even if there was
material the court should not send back to the Board (for example, Botterills of Blantyre.) Mr Blair also referred to, and relied
upon, the cases of Risky Business Ltd
v City of Glasgow Licensing Board
2000 S.L.T. 923 and Leisure Inns. In short, if there was material then the
matter should be sent back to the Board subject to compelling reasons not to do
so. Mr Blair also referred to the
case of BP Express Shopping Ltd v West Fife Divisional Licensing Board,
Dunfermline Sheriff Court 15 June 2007 (unreported) Sheriff Fleming, and
in particular paragraphs [18] to [20].
[18] In
support of his submission that I should remit the matter back to the Board
Mr Blair made the following submissions.
[19] There
were two sales within three weeks in the same premises. That was in the context of an "under 21"
policy and use by police of people who look their age (i.e. 16). There was no suggestion that the ages were
contested. The Board could accept an
argument that the purchasers looked their age or alternatively the agents may
say that they want photographs. There
was one experienced member of staff and one inexperienced member of staff. On the face of it it called for an
explanation. There were aspects of the
system which the Board might wonder about.
There was an internal test purchase system in addition to the external
regime operated by the police. There was
an indication that if there was a failure at the stage of the internal test
system, there would be re-testing within seven days of failure and refresher
training. This procedure applied to internal
test purchases and police test purchases but not to a failure through a test
purchase. There was no test purchase
after 2 July. After the first
underage sale the assistant resigned.
The Board might be concerned about her explanation that she was too
busy. The Board might ask questions
about that. Was the store
undermanned? The Board was entitled to
explore such explanation. In other words
do the systems stand up to rigorous tests? Are staff trained to turn a blind
eye when they are busy? In relation to
the second test purchase, there were matters which call out for an
explanation. The police intercepted the
person when on patrol. The sales
assistant said she had no recollection of this particular sale and there was
nothing which showed on the CCTV system.
The Board might say that this explanation was not credible. Should the first pursuers have done more to
check about the facts of this? Do the
first pursuers ask the correct questions of employees when something like this
happens? So far as the question of
public interest was concerned, this was a matter pre-eminently for the Board,
as was the length of suspension.
[20] In
relation to Mr Skinner's point concerning "hardening of attitudes" and
whether there was a policy of "two strikes and out" that was tantamount to allegations
of a fetter of the Board's discretion and bad faith. There were no averments to that effect. There were also no averments about a "political
agenda". The pursuers do not make a case
of a "political agenda". The Board was entitled to have regard to the question
of underage drinking in the public interest. The defenders admit that there
were other suspensions but overall it was for the pursuers to make their case.
[21] By
way of reply, Mr Skinner submitted that if the court held there was no
basis for the decision, what would be the purpose of a remit? Mr Skinner referred to Leisure Inns. The matter should not go back to the Board
for them to ask questions which they could have done on a previous occasion but
did not do so. If matters had been the
other way round, it would not be open to the pursuers to put fresh material
before the Board. The question was not
really whether the system could be improved.
[22] Both
counsel moved me to certify the cause as suitable for the certification of
counsel. In relation to expenses
Mr Skinner moved me to award his clients expenses of the action. I was told the Board's agents had intimated
on 6 July 2007 their intention
not to oppose the appeal.
Mr Blair's submission was that the expenses of the appeal should be
limited up to that date.
Decision
[23] I
start by setting out the relevant parts of the 1976 Act:
"31(1) Where on a complaint being made to a licensing Board ... the Board is
satisfied that it is in the public interest to do so, it may, in accordance
with the provisions of this section, suspend a licence.
(2) A
licensing Board may order the suspension of a licence on one ... of the following grounds -
(a) that the licence holder is no longer a fit
and proper person to be the holder of a licence;
...
39(1) An appeal which may be made by virtue of any provisions of this Act
against any decision of a licensing Board shall be to the sheriff, and a
decision of the sheriff on any such appeal may include such order as to the
expenses of the appeal as he thinks proper.
...
(4) The
sheriff may uphold an appeal under this section only if he considers that the
licensing Board in arriving at its decision -
(a) erred in law;
(b) based its decision on any incorrect
material facts;
(c) acted contrary to natural justice; or
(d) exercised its discretion in an unreasonable
manner.
...
(6) On
upholding an appeal under the section the sheriff may -
(a) remit the case with the reason for his
decision to the licensing Board for reconsideration of its decision; or
(b) reverse or modify the decision of the
licensing Board."
[24] As
I have said, the real issue between the parties is not whether the appeal
should be allowed, but what I ought to do, having allowed the appeal, namely
remit to the Board for reconsideration, together with a note of my reasons or
whether I ought to reverse the decision.
[25] Of
the authorities to which I was referred I deal firstly with those which, in my
opinion, are of limited, if any, assistance.
In both Hamid and Sohal, parties were agreed what disposal
was appropriate in the event the appeal was allowed. Hughes
v Hamilton District Council was
concerned with an error made by the sheriff in his reasoning.
[26] The
decision in Botterills concerned an
issue of over-provision of licences. The
sheriff allowed an appeal against a decision of the Board and directed that a
licence be granted. The sheriff
concluded that attitudes had hardened and that it would be difficult for the Board
to consider the application with detachment.
The Second Division upheld the decision of the sheriff and saw no reason
to interfere with his "discretionary power" in this regard. Leisure
Inns concerned the decision of the Board to refuse a licence on the grounds
of the "strong possibility" that the use of the premises would have a
detrimental effect upon the community of four dwelling houses. The sheriff held that the reasons given by
the Board were inadequate and ordered the grant of the application. The Second Division upheld the decision of
the sheriff. In the course of his
opinion, the Lord Justice Clerk (Ross) held that the reasoning of the Board was
inadequate. Senior counsel for the Board
invited the court to remit the matter back for reconsideration by the Board. Lord Justice Clerk Ross having examined the
evidence concluded that there was, in effect, no material before the Board
which would justify the particular ground of refusal. There was thus no point in remitting the case
back to allow them to do so. The Lord
Justice Clerk also held, albeit obiter,
that the Board could not be asked to "amplify" their reasons. Lord Ross also stated (page 799 I-J)
that whether to remit was a matter of discretion for the court. Matchurban
Ltd concerned an application for a gaming/entertainment licence. The applications were refused by the Board. An appeal was taken against the refusal and
sustained by the sheriff on the grounds of breach of natural justice. The sheriff directed that the matter be
remitted to the Board for reconsideration and an appeal against that decision
was taken. Accordingly, the specific
issue before an Extra Division was the decision to remit. The report is in note form and does not
disclose all of the facts. It would
appear that a member of the committee said or did something which was
inappropriate, although it is not clear whether, if at all, it was taken into
account by other members of the committee.
The Extra Division decided the matter on the reasoning of a decision
referred to in an earlier part of their opinion (William Hill (Scotland) Ltd v Kyle
& Carrick District Licensing Board 1991 S.L.T. 559). That reference suggested that if there is
material on which the Board intends to rely it ought to give the parties notice
thereof and an opportunity to reply. Had
the Board done so, it might or might not have granted the application and
therefore the proper course was to remit the matter back to consider de novo.
In the course of its opinion the Extra Division said:
"... Parliament has decided that the
decision on matters of this kind should be taken by the local licensing
authority and there would need to be compelling reasons for removing from such
an authority the responsibility for taking such decisions" (page 506J-I).
It
may be important to note that the decision of the Extra Division was itself discretionary. It was agreed that the sheriff had failed to
exercise his mind properly as to the exercise of the discretion conferred upon
him and the matter was therefore at large for the Extra Division to consider. As I read the opinion, it seems to have been
anticipated that the effect of the remit would be a completely fresh
hearing. The case of Risky Business Ltd v Glasgow Licensing Board contains perhaps
the most extensive analysis of when a remit should be made. The case itself concerned an application for
an entertainment licence. An Extra
Division refused an appeal against the decision of the sheriff to the effect that
the Board had erred in refusing to grant the application. One of the arguments before the Extra
Division was whether the matter should be remitted back to the Board for
reconsideration. In giving the Opinion
of the Court, Lord Prosser said:
"We
have considered whether this was the type of case where the decision itself
cannot stand, but the matter should be sent back to the Board for
reconsideration and a new decision.
Again, we do not think that the legal position is in doubt. The Board is the body upon which the function
of deciding such matters is conferred.
If they have committed some error of law or of reasoning, and if refusal
would be open to them upon the correct view of the law and any reasonable assessment
and balancing of available material, then of course the matter should go back
to them for such balancing and assessment and reasoning to be carried out by
them. This is familiar and clear, from
such cases as Latif v Motherwell District Licensing Board. We have considered whether in this case there
is merely a failure to express the reasoning and decision properly in the
statement of reasons, so that all that is required is re-formulation of actual
reasons; and we have also considered
whether there was any material, whether presented to the Board or available, in
the form of knowledge and expertise, upon which any reasonable Board might
decide that refusal was appropriate ...
But in our opinion the problem is not merely one of the way in which the
reasons are expressed. And as we have
concluded, there was here no material before the Board, and nothing in the way
of either local knowledge or experience apposite to an assessment of premises
such as these, which any reasonable Board could have held to constitute the
necessary basis of refusal. ... we are
satisfied that this is one of the fairly unusual cases in which the only proper
disposal was a grant of the application.
We therefore remit the matter to the sheriff, with instructions to him
to remit the matter to the Board, with instructions to them to grant the
application."
[27] It
is axiomatic that section 39(6) can only come into operation when the appeal is
allowed. The basis for allowing an appeal is set out in the four grounds in
section 39(4). It is often the case, as it is here, that the facts may support
one or more of the statutory grounds of appeal. The authorities establish quite
clearly that, on upholding the appeal, the court then has a discretion as to
whether to remit the matter to the Board for reconsideration (together with
reasons) or whether to reverse or modify the decision. There is nothing in this subsection itself
which gives guidance as to which of the two disposals should be followed. In my opinion, in determining which disposal
to adopt the court will have regard to the basis upon which the appeal is
allowed. There are dicta in Matchurban and Risky Business Ltd ("strong and compelling reasons";
"fairly unusual cases"; the Board is the "body upon which the
function of deciding such matters is conferred") which might suggest there
is some preference, or even a presumption, in favour of sending matters back to
the Board for reconsideration. However,
I do not think that is the case. In both
William Hill (Scotland )Ltd and
Matchurban, it appears that the Boards had information which they failed to
impart to the appellants. The appellants had not the opportunity to comment on
that information. The court held the Boards
might or might not have granted the applications but that could only be
determined when the Boards had the whole information before them. It is therefore not surprising that the
matters went back to the Boards for reconsideration. Botterills was a case where a view was taken that the particular Board
could not be sufficiently detached and thus the matter could not properly go
back to the Board. In both Leisure Inns Ltd and Risky Business Ltd the court came to the conclusion that there was
no material which would justify the Board in refusing the applications. Risky Business Ltd also involved an
analysis of the reasons of the Board and whether it was just a question of
reformulation of reasons. In both cases,
a remit was not appropriate. I do not
think that the reference to "unusual cases" in Risky Business Ltd means that the cases should normally be remitted
back. It is perhaps more a reflection
that there may be relatively few cases where it can be said that there is no
material, and so on, which would entitle the Board to reach its conclusion.
[28]
If I apply the above to this case, one practical difficulty is that the
basis of the appeal is not matched exactly that the terms upon which it is
conceded that the appeal should be allowed.
Mr Skinner's attack was broader than the terms of Mr Blair's surrender. Section 39 (6) requires the sheriff to give
reasons for allowing an appeal. No doubt
so the Board can benefit from any guidance in the sheriff's note. As I understand Mr Blair, he accepted that
the Board erred in law in that it applied a strict liability test in section
31. The test should be one of
culpability or blameworthiness. He also
accepted that the Board did not give adequate reasons for its decision. I understood him to mean that the Board had
not explained why it was the case that the pursuers were not fit and proper
persons to hold a licence. If I remit
the matter back to the Board for reconsideration there will have to be further
procedure before the Board. The basis of any further hearing is perhaps not
entirely clear. William Hill (Scotland) Ltd refers to a hearing "de novo".
The Extra Division in Hamid (2000 SLT
193 at para [10]) reserved its position on the content and extent of any
rehearing. There may be a distinction
between a hearing de novo and a rehearing. I express no view on it.
[29] It
is clear that the issue before the Board is the application of section 31. The issue of the interaction between section
31(1) and section 31(2) (a) was discussed before me. It was agreed that the first issue is whether
the licence holder is a fit and proper person to be the holder of a licence
(section 31 (2) (a)). The second issue
is whether, if it is so held, whether it is in the public interest that the licence
should be suspended and, if so, for how long.
As I have said, determining the issue of whether someone is a fit and
proper person to hold a licence involves consideration of whether there is
culpability on the part of the licence holder.
In the case of a non natural person, in matters such as this, it will
obviously involve consideration of the systems in place.
[30] If
one looks at the reasons given by the Board, and the material before it, it is
correct to say that the Board did err in law and that the reasons are not
adequate. However, I do add this. In its
reasons, the Board expressed its concern about the sale of alcohol to young
persons and its prevalence in Fife. It should not be thought that my opinion on
the legality of the Board's decision carries with it an implicit criticism of
the Board's concern on this issue or the court's indifference thereto. It is as much within judicial knowledge
within this sheriffdom as it is within the knowledge of the Board that this is
an issue of concern. Nevertheless, both
the court and the Board are obliged to act within the constraints of the law as
it exists. The issue before the Board is
the correct application of section 31 of the 1976 Act. Put another way, the Board should not confuse
the desire to prevent underage consumption of alcohol with the assessment of a licence
holder's fitness to hold a licence although underage sales may be very relevant
to questions of unfitness. I note that
the reasons make reference to the exercise of "due diligence". That provision appears in section 67 of the
1976 Act. Where the fitness involves
consideration of an underage sale I can see a superficial attraction in
referring to section 67 but in my view it is not helpful and may serve only to
confuse matters. The issue is whether
the licence holder is a fit and proper person to hold a licence.
[31] If
I return to the dicta in Risky Business
Ltd and seek to apply and adapt them here, given that I have held that the Board
erred, had they applied the law correctly and assessed the material before them
reasonably, could they come to the view that the first and second pursuers were
not fit and proper persons to hold a licence?
In my view that requires a proper and objective analysis, inter alia, of
the systems in place and the facts of the case.
It is not my function to substitute my own view of the material before
the Board and it would be an error from me to do so (Latif v Motherwell DLB 1994 SLT 414). It seems to me that the Board began from the
wrong basis and therefore wrongly assessed the material before it. Armed with the correct basis I do not think I
can go as far as to say that there is no material before the Board which might
entitle it to reach the view it did.
[32] In
relation to Mr Skinner's submissions concerning hardening of attitudes;
allegations of a political background; the application of a policy; the Board
will not look at matters dispassionately, I think there is some force in the
argument that there are no averments to support these propositions. In any event, I do not think there is
sufficient material on these issues to cause me not to remit for
reconsideration. As I said, it seems to
me that the Board considered the issues from the wrong starting point. If it starts from the correct basis then I
see no reason why it should not be able to deal with matters appropriately and
dispassionately.
[33]
I shall therefore allow the appeal and
remit the matters back to the Board for reconsideration of its decision. I was not addressed upon the need for any
orders pursuant to section 39 (7) and I make no such direction. That of course is not intended to encourage
any delay in the conclusion of further proceedings.
[34] In
relation to expenses, I shall in due course certify the cause as suitable for
the employment of junior counsel. The
issues raised and debated before me justify such a course of action. The pursuers are entitled to expenses. The question is whether the letter of 6 July 2007 ought to limit the pursuers'
entitlement. I have concluded that, in
fairness to both parties, in the light of my reasons, I ought to give them an
opportunity to address me on this issue.
I shall put the matter out for a hearing on expenses. I do not require the attendance of counsel on
that occasion.
