Scottish Sheriff Court Decisions

 

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

B870/12

JUDGMENT OF SHERIFF S. REID, Esquire, Sheriff of Glasgow and Strathkelvin

in the cause

THOMAS MELVILLE, residing at 64 Bracadale Road, Glasgow G69 7EW

PURSUER

against

CITY OF GLASGOW LICENSING BOARD, City Chambers, 235 George Street, Glasgow

DEFENDERS

______________________________

 

Act: Mr E. Doull, Solicitor, Brunton Miller, Glasgow

Alt: Mr D. Boag, Solicitor, Glasgow City Council, Glasgow

 

GLASGOW, 10 July 201 2.

The sheriff, having resumed consideration of the cause, repels the first, second and third pleas-in-law for the defender, sustains the first plea-in-law for the pursuer, and upholds the pursuer's appeal and, in terms thereof, reverses the decision of the defenders made on 19 March 2012 to suspend the pursuer's premises licence in respect of the premises known as "The Blochairn Bar", 269 Blochairn Road, Glasgow for a period of one week, and recalls the said suspension; finds the defender liable to the pursuer in the expenses of the appeal as tax; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; and decerns.

 

 

 

 

NOTE:

Summary

[1] This is an appeal under section 131(1) of the Licensing (Scotland) Act 2005 ("the 2005 Act"). The pursuer appeals against the decision of the City of Glasgow Licensing Board ("the defender") on 19 March 2012 to suspend the pursuer's premises licence (for the premises known as The Blochairn Bar, 269 Blochairn Road, Glasgow, sometimes referred to as "The Budgie"). The suspension was for a period of one week.

[2] The suspension arose as follows. The Chief Constable of Strathclyde Police applied to the defender for a review of the premises licence, in terms of section 36(1) & (3)(b) of the 2005 Act. In short, the Chief Constable alleged that on 30 October 2011 the pursuer's employee had sold alcohol to customers outwith the permitted licensing hours (namely at 12.20 pm, 10 minutes before the permitted opening time at 12.30 pm).

[3] The pursuer denied the allegation.

[4] The pursuer alleged that the attending police officers were wrong about the time. The pursuer claimed that the police officers had entered the premises within the permitted licensing hours (namely at 12.35 pm, 5 minutes after the opening time at 12.30pm).

[5] Having heard submissions, but without hearing oral evidence, the defender found the ground for review established. On 19 March 2012, the defender ordered that the pursuer's licence be suspended for one week, commencing at 11.00 am on Tuesday, 20 March 2012.

[6] The pursuer appealed against the Board's decision. On 21 March 2012, having heard parties on the pursuer's motion for an interim order under section 132(8) of the 2005 Act, the Sheriff Principal ad interim recalled the defenders' decision until further order of Court.

[7] On 22 May 2012, in exercise of a delegated authority from the Sheriff Principal, I heard full submissions from the parties in relation to the appeal.

[8] The appeal raises, among others, two key issues: (i) whether the reasons given by the defender for its decision are adequate and (ii) more generally, in the context of a section 36 review application, where a Licensing Board is presented with disputed and directly contradictory factual allegations, and where no evidence is heard, whether a Board can properly prefer one disputed version of events over the other and thereby find the ground of review to be established.

 

The Review Hearings and Relevant Documents

[9] There was no dispute between the parties regarding the submissions made at the Review Hearings and the relevant documents.

 

The Review Application (The Chief Constable's letter dated 19 January 2012)

[10] The pursuer is the holder of a premises licence for the premises.

[11] By letter dated 19 January 2012 (item 5/1) the Chief Constable of Strathclyde Police applied to the defender for a review of the pursuer's premises licence, under section 36(1) of the 2005 Act. The application bears to proceed under section 36(3)(b) of the 2005 Act, namely, "on grounds relevant to the Licensing Objective of preventing crime and disorder".

[12] In support of the application, the letter states:-

"The Licensing Board will be aware that Strathclyde Police previously submitted an application for a review of the premises licence, which was heard by the Board on 19 September 2011. At the hearing the Board varied the premises licence to remove the early morning hours.

 

Following the submission of that application on 24 August 2011, but prior to the Board hearing on 19 September 2011, [the designated premises manager, Margaret Anne McKenna] was reported to the procurator fiscal for a contravention of section 1 and section 110 of the Licensing (Scotland) Act 2005. That report arose from an incident on 11 August 2011 when officers attended the bar at 10.58 am and found three customers within the premises, two of whom were consuming alcohol. However, there was no evidence of hot food being provided. Further, the officers in attendance noted that the summary premises licence was not on display. A trial date has been set for 3 February 2012 at Glasgow JP Court.

 

At 12.20 pm on Sunday, 30 October 2011, police officers noticed that the front doors of The Budgie Bar were open. Inside, they found 10 patrons at the bar, eight of whom were drinking from pints of lager. Another customer was being served a pint of lager by the person in charge at that time, Elizabeth Anderson.

 

The officers questioned Ms Anderson regarding the sale of alcohol outwith permitted hours. She confirmed that she was aware alcohol should not have been sold prior to 12.30 pm and she apologised for doing so.

 

Ms Anderson then contacted the premises manager, Margaret McKenna. A short time later, Ms McKenna attended at the bar and was asked by the officers to provide the till receipt for that day. Ms McKenna handed the till receipt from 1.00 pm and stated that the rest of the receipt was missing. When asked to provide a duplicate copy of the receipt she advised the officers that she was unsure how to print off duplicate receipts for a date and stated that the cash register must be broken. The officers were surprised at Ms McKenna's inability to assist as they had expected her, as the designated premises manager, to be familiar with the workings of the till. Ms McKenna also advised the officers that the CCTV system was not working at the time.

 

Ms Anderson and Ms McKenna were subsequently reported to the procurator fiscal for contravening Section 63(1) of the Licensing (Scotland) Act 2005, selling or allowing the sale of alcohol outwith licensed hours. On 10 January 2012, the fiscal elected to take no proceedings on the matter.

 

The Chief Constable requests that the [the defender] consider the aforementioned grounds for review and take such steps as it consider[s] necessary or appropriate for the purposes of the Licensing Objectives, under the terms of Section 39(2) of the Act."

 

The Review Hearing (20 February 2012)

[13] A Review Hearing took place on 20 February 2012. The pursuer was represented by a solicitor. A copy of transcript of the Review Hearing on 20 February 2012 is produced by both parties (items 5/8 and 6/3).

[14] At the Review Hearing, Inspector Ross (appearing for the Chief Constable) repeated the terms of the letter dated 19 January 2012 (item 5/1).

[15] He then provided an update to the defender on the prosecution that had arisen from the incident on 11 August 2011 (to which reference had been made in the letter). He explained, firstly, that following a trial on 3 February 2012 at Glasgow Justice of the Peace Court a plea of "not guilty" was accepted by the procurator fiscal to the charge under Section 1 of the 2005 Act (the alleged unlicensed sale of alcohol on the premises). Secondly, Ms McKenna (the designated premises manager) pleaded guilty to, and was convicted of, the second charge under Section 110 of the 2005 Act (the failure to display a statutory notice regarding the purchase of alcohol by a person under the age of 18). She was admonished.

[16] The pursuer's agent began his submission by addressing the incident on 11 August 2011. He disputed that the pursuer had failed to comply with the conditions of the terms of the so-called "breakfast licence" that had then been in place. Besides, he submitted, the pursuer's designated premises manager had been formally acquitted of the first charge (under section 1 of the 2005 Act) and the separate charge (under Section 110 of the 2005 Act) was "very much a technical offence". This was reflected in the sentence, which was merely an admonition. Accordingly, in relation to the incident on 11 August 2011, the pursuer's agent invited the defender to conclude that the ground for review had not been established" (See Transcript of Review Hearing on 20 February 2012, page 114, lines 10-17: item 5/8). Besides, the pursuer's agent submitted, notwithstanding the denial of any breach, the matter was now "academic" as the so-called breakfast licence had been removed at a previous Board Hearing on 19 September 2011.

[17] It may be convenient to note at this juncture that the alleged incident on 11 August 2011 does not appear to have figured thereafter in the defender's reasoning. The Statement of Reasons (section 10) records that the defender's decision relates only to the subsequent alleged incident on 30 October 2011.

[18] Turning to the alleged incident on 30 October 2012, the pursuer's agent disputed virtually the whole version of events presented on behalf of the Chief Constable. Critically, contrary to the information from the police, the pursuer's agent submitted that Ms Anderson had not served any customer until 12.30 pm on 30 October 2011 (i.e during permitted opening hours). Indeed, she had turned away customers who had entered the pub a few minutes early. It was the pursuer's position that the police officers had entered the bar after 12.30 pm, and not at 12.20 pm as alleged by the Chief Constable. It was pursuer's position that when the police officers had first spoken to Ms Anderson alleging that she had sold alcohol outwith permitted hours, she had explicitly denied the allegation and had shown the officers the time both on her watch and on the clock within the pub, both of which, it was said, displayed 12.35 pm. One of the police officers (Officer Findlay) had allegedly conceded to her that there may have been a mistake regarding the time as British Summer Time had ended earlier that morning. The pursuer's agent also denied that Ms Anderson had made any form of admission or apology for having sold alcohol outwith permitted hours. Such comments as had been made had been taken out of context, it was said. Further, the pursuer's agent disputed that Ms McKenna had provided the police officers with only part of the till roll. In fact, it was submitted, she had provided the officers with the entire till roll. It was conceded that she was unable to provide the officers with a copy of the till roll, as she did not know how to do this, but the pursuer's agent explained that the police officer was also unable to print off a copy and that, having checked with the manufacturer the following day, the manufacturer had also confirmed that no such copy can be printed off from the till. The pursuer's agent accepted that the CCTV was not working within the premises but explained that this was of no significance as there was no requirement or condition in the licence that CCTV be available or operational.

[19] The pursuer's agent explained that the pursuer's version of events could be corroborated by several customers (See Transcript of Review Hearing dated 20 February 2012, page 119, lines 3-9 & 22-23).

[20] The pursuer's agent produced to the Board a handwritten statement bearing to be signed by a customer called Eddie Gardiner. The statement purported to confirm that Mr Gardiner and another customer had not been allowed into the premises until 12.30pm.

[21] The pursuer's agent contrasted this evidence with that of the Chief Constable's review application letter dated 19 January 2012 which, he said, was "third or fourth hand" in nature (Transcript, page 119, line 25 and page 120, lines 1-7).

[22] In short, the pursuer's agent denied and disputed the material allegations in the Chief Constable's review application dated 19 January 2012. Specifically, the police officers were mistaken on the critical issue of time.

[23] The pursuer's agent did not explicitly request that the defender exercise its discretion to hear evidence. Instead, the pursuer's agent submitted at the Review Hearing on 20 February 2012 that, unless evidence was heard, the starkly conflicting versions of events could not properly be resolved, in particular the defender could not properly be satisfied that the ground for review was established.

[24] The pursuer's position was summarised as follows at the Review Hearing:

"Now unless your Honours are going to hear evidence I don't know how you can resolve this, and my suggestion would be that you can't resolve it. You can't make a finding that the Grounds for Review have been established because unless evidence is heard you have our word against anonymous policemen who are not here and as I say this is the difficulty with this type of complaint..... The fiscal has reviewed the evidence and didn't think there was enough evidence to prosecute but for whatever reason the matter has not been prosecuted in the Sheriff Court and I don't think it should be prosecuted here unless you are going to do it properly by hearing evidence." (Transcript of Review Hearing on 20 February 2012, page 120, lines 8-25 and page 121, line 1.)

[25] In response for the Chief Constable, Inspector Ross acknowledged that two different versions of events were being presented to the Board. He sought to clarify that the police report had not "come through different people and been diluted" (Transcript, 20 February 2012, page 121, lines 22/23) though he conceded that "the reports are summarised in the letter to some extent to keep it short". He then added that the police reports "...say it was 12.20 and they [the two police officers] both checked their watches in the pub. At that time there were people sitting there, 8 out 10 with pints of lager in front of them". Inspector Ross also advised the Board that the police officers had reported that Ms Anderson "...certainly said the patrons had come in the premises about 12.30 but according to the officers' watches at that time it was before that time" (page 122, line 7-10).

[26] Inspector Ross further stated to the Board:-

"I believe there was some indication they had actually checked with the control room the correct time but I'm just looking to confirm that that is the case".

However, the Transcript does not record Inspector Ross as having confirmed whether that was indeed the case.

[27] On being asked directly by the Chairman how the police officers had confirmed the time at which alcohol was alleged to have been served, Inspector Ross stated:-

"It says in the report both officers checked their watches and both showed 12.20 as the time".

[28] The Board decided to continue consideration of the application to a further Review Hearing on 19 March 2012. This was to allow the Chief Constable to clarify the issue of the time at which alcohol was allegedly served within the premises. The Transcript records that the application was continued "just in relation to the times for clarification from yourselves on that point". (In submissions before me, it was not disputed by the defender that this comment was directed to, and the clarification was being sought from, the police.)

[29] By letter dated 9 March 2012 (item 5/3), the Chief Constable provided the following information in relation to the Review Application. The letter states:-

"I refer to the above subject and to the meeting of the Board on 20 February 2012 at which the Chief Constable's request for a review of the Premises Licence for the Budgie Bar was heard and subsequently continued.

 

Further enquiry has been made with the two officers that attended at the Budgie Bar on Sunday, 30 October 2011 as detailed in my previous letter of 19 January 2012. Unfortunately, this enquiry has revealed little, substantive information that I can add to the content of that letter to provide additional evidence of events on the day.

 

With regard to the crucial issue of the timing of the officers' visit to the premises, the officers maintain that, on entering the premises and finding that patrons were within and had been served alcohol, they both checked their own watches and confirmed that the time was 12.20 pm. It was for that reason that they followed the course of action previously described. The officers also confirmed that they noted the nominal details of a number of customers within the premises, that all of these potential witnesses declined to provide a statement."

 

The Continued Review Hearing (19 March 2012)

[30] The Continued Review Hearing took place on 19 March 2012. The pursuer was again represented by a solicitor. A copy of the Transcript of this Hearing is produced by both parties (items 5/11 and 6/6).

[31] At the Continued Review Hearing, Inspector Morris (appearing for the Chief Constable) read to the defender the terms of the letter dated 9 February 2012.

[32] The pursuer's agent expressed the opinion that the letter dated 9 February 2012 took the matter no further forward. He submitted that the defender was still faced with a starkly conflicting version of events on the critical issue of the precise time at which alcohol was said to have been supplied on the premises.

[33] The pursuer's agent produced to the Licensing Board three Affidavits. The deponents were Brian Masterton, Paul McGhee and Terence McCormick. The Affidavits were each dated 16 March 2012. In addition, the pursuer's agent produced a handwritten signed Statement of Elizabeth Anderson. Reference was made to the Affidavits and Statement together with the separate handwritten signed statement of Eddie Gardiner produced at the Review Hearing on 20 February 2012. The pursuer's agent submitted to the Board that these documents vouched the pursuer's assertion that that the police officers were in error as to the time at which they had first entered the premises and that alcohol was not served on the premises until after 12.30 pm.

[34] The pursuer's agent noted that no substantive additional information had been produced to vouch the police officers' allegation. He noted specifically that the Chief Constable had failed to produce the police notebooks.

[35] The pursuer's agent reiterated that the defender could not properly find the grounds of review established "where there is a diametrically opposed view of the circumstances surrounding this incident" (Transcript, 19 March 2012, page 171, lines 8-12).

[36] The pursuer's agent submitted that the onus of proof lay on the police in the first instance to substantiate the allegation (Transcript, 19 March 2012, page 172, lines 20-22).

[37] Lastly, if the Grounds of Review were to be established, the pursuer's agent submitted that, at worst, the incident should be regarded as no more than a genuine mistake as to the proper time and that this should be reflected in any sanction.

 

The Licensing Board's decision

[38] Having considered matters, the defenders concluded that it was satisfied that the grounds for review had been established and that it was necessary and appropriate (for the purposes of the licensing objective of preventing crime and disorder) that the premises licence be suspended for a period of one week commencing at 11.00 am on 20 March 2012.

 

The Statement of Reasons

[39] The Statement of Reasons for the Board's decision was issued in April 2012. A copy is produced by both parties (items 5/9 and 6/5).

[40] The Statement records the terms of the Chief Constable's Review Application dated 19 January 2012 and the Chief Constable's letter dated 9 March 2012. Reference is also made to the transcript of the Review Hearings on 20 February 2012 and 19 March 2012. The Statement also records that, in support of his submission, the pursuer's agent (on 19 March 2012), produced to the Clerk of the Board, three affidavits and two handwritten letters "supporting his client's position that the police officers when they attended the premises on 30 October 2011 attended after the premises opened at 12.30 pm".

[41] The Statement then records the reasons for the Board's decision in the following terms:-

"Following a number of questions having been posed by members of the Board, as disclosed in the shorthand notes, the Board thereafter retired to consider the Review Application along with all the submissions it had heard.

 

Having done so, the Board was of the view that in relation to the incident on 30 October 2011, there had been a lack of managerial control and responsibility at the premises, and held that the Grounds for Review were established and that it was necessary and appropriate for the purposes of the Licensing Objective of preventing crime and disorder, that the Premises Licence be suspended for a period of one week.

 

The Board had carefully considered all submissions made by both the Chief Constable's representative and the Premises Licence Manager's legal representatives on both occasions in relation to the disputed time the police officers had attended the premises on 30 October 2011. Following careful and full consideration of said submissions, the Board decided that the evidence of the Review Application was preferred. The Board was of the view that no information or material had been provided by the Licensed Premises Manager or his representatives to support their proposition that the police officers had not attended the premises until after 12.30 pm. The Board was concerned that the premises had previously on 19 September 2011 been issued a written warning and had the Premises Licence varied so as to remove the early morning licensed hours with immediate effect, on the basis that the Grounds for Review at that time had been established and it was necessary and appropriate for the purposes of the Licensing Objectives of preventing crime and disorder and securing public safety to issue such an written warning.

 

The Board was concerned that despite this previous sanction being imposed only six months previously, the Review Application had been upheld once again. Having found the Ground for Review had been established, the Licensing Board required to consider whether it was necessary and appropriate to take any steps as set out in Section 39(2) of the Act...The Board determined that it was appropriate to suspend the Premises Licence immediately for a period of one week and this was a reasonable and proportionate response to these matters."

 

Submissions for the pursuer

[42] The pursuer challenged the defender's decision on three principal grounds.

[43] Firstly, the pursuer argued that the material before the defender did not justify or support the conclusion that the ground for review had been established. In reaching this conclusion, the defender had erred in law et separatim exercised its discretion in an unreasonable manner, in terms of section 131(3)(a)(i) & (iv) of the 2005 Act (Article 3 of Condescendence). Specifically, the pursuer's agent argued that the defender was faced with starkly conflicting versions of events on the critical issue of the time at which the police officers had entered the premises and witnessed alcohol being served to customers. According to the Chief Constable, the police officers had entered the bar and witnessed the supply of alcohol at 12.20 pm. According to the pursuer, the officers had entered the premises and witnessed the supply of alcohol at 12.35 pm. The conflicting versions of events were said to be "polarized". It was the pursuer's submission that, unless the defender then exercised its discretion to hear evidence on the conflicting versions of events, that the defender could not properly be "satisfied" that the ground for review was established, in terms of section 39(1) of the 2005 Act.

[44] The pursuer's agent submitted that the onus of proof lay upon the Chief Constable, as the applicant in the Review Application, to substantiate its allegations. The imposition of the onus of proof upon the applicant was implicit, it was said, in the wording of Section 39(1) of the 2005 Act which required that a Licensing Board must be "satisfied that a ground for review is established".

[45] I was referred to Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board 1993 SLT 796, Devana Investments Ltd v City of Aberdeen Licensing Board 1992 SCLR 616 and Nazir Ahmid v City of Glasgow Licensing Board, 23 July 1999, Glasgow Sheriff Court (Sheriff J.K. Mitchell), unreported (and a short commentary upon the Ahmid decision in Scottish Licensing Law and Practice, October 1999, page 37).

[46] I was also referred to JAE (Glasgow) Ltd v Glasgow District Licensing Board 1994 SLT 1164. The pursuer's agent acknowledged that a Licensing Board has a discretion whether or not to hear evidence in a Review Application. However, particular reliance was placed upon the decisions in Devana and Nazir Ahmid. With reference to Devana, the pursuer's agent argued that a Licensing Board would be acting contrary to natural justice by accepting a disputed version of material facts, without first hearing evidence. To do so would constitute an unreasonable exercise of discretion. With reference to Ahmid, it was submitted that where parties are in dispute on material matters of direct relevance to the issue in hand, "the only proper and satisfactory way to resolve these matters" was to hear evidence "in order to afford a fair hearing to the [licence holder] and to give proper equality of treatment to both the [licence holder] and the Chief Constable on the material matters of fact in dispute" (at page 14, paragraphs C-D).

[47] In the present case, the pursuer's agent submitted that the issues in dispute between the parties could not be wider. Absent a hearing of evidence on the disputed issues of fact, he argued that the defender could not properly prefer one disputed version of events over another, and could therefore not be satisfied that the ground for review was established.

[48] Secondly, the pursuer's agent submitted that the defender had erred in law et separatim exercised its discretion in an unreasonable manner by failing to provide proper and adequate reasons for its decision (Article 4 of Condescendence). There were two aspects to this ground of challenge. In the first place, the pursuer's agent argued that having regard to the Statement of Reasons the defender had ex facie either overlooked or simply ignored the documentary material (comprising three Affidavits and two handwritten statements) bearing to vouch the pursuer's version of events. This was said to be evident from the sentence in Section 10 of the Statement of Reasons reading : "The Board was of the view that no information or material had been provided..... to support their proposition that the police officers had not attended the premises until after 12.30pm". In the second place, even if the defender had neither overlooked nor ignored that evidence, nevertheless the defender's Statement of Reasons failed to explain why the information provided by the Chief Constable had been preferred. The pursuer's agent argued that an informed reader would be left in real and substantial doubt as to what the defender had made of the material produced for the pursuer and why the police evidence was preferred. Reference was made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, Albyn Properties Ltd v Knox 1977 SLT 41, R W Cairns Ltd v Busby East Kirk Session 1958 SC 110, Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board (supra). I was also referred to Robertson v City of Edinburgh District Licensing Board 1995 SLT 107 and Mirza v City of Glasgow District Licensing Board 1996 SLT 1029 to support the proposition that the "informed reader" test applied to Licensing Board decisions. Lastly, reference was made to Ritchie v Aberdeen City Council, 2011 CSIH 22 and Buzzworks Leisure Ltd v South Ayrshire Licensing Board 2012 SLT 443 to illustrate that the same principles applied to Board decisions under the 2005 Act as to decisions under the preceding legislation.

[49] Thirdly, and finally, the pursuer's agent challenged the defender's decision on the ground that the decision to suspend the pursuer's licence was disproportionate in all the circumstances, in terms of section 131(3)(b) of the 2005 Act. At worst, it was submitted, if there was adequate information to justify the conclusion that alcohol had indeed been sold outwith the permitted hours, the alleged violation would properly be attributable to a genuine mistake on the part of the pursuer's employee as to the correct time (the error having arisen in the context of the clocks having gone back earlier that day, at the end of British Summer Time). Furthermore, the alleged violation was relatively minor, involving an alleged unlicensed sale just 10 minutes prior to the permitted opening hours. In those circumstances, the pursuer's agent submitted that a written warning would have been an adequate and more appropriate sanction. Reference was made to Baird v Glasgow City Council 2003 SLLP 27 in which Sheriff Holligan had concluded that a six month's suspension of a taxi licence was disproportionate in the context of a one off incident of offensive language by taxi driver with an otherwise long and unblemished record.

[50] The pursuer's agent invited me to uphold the appeal, reverse the defender's decision and recall the suspension. If I was minded to sustain only the pursuer's third ground of appeal, the pursuer's agent invited me to consider substituting a warning, in terms of section 131(5)(c) of the 2005 Act.

 

Submissions for the defender

[51] The defender's agent moved that the appeal be refused. Alternatively, if I considered that there was substance in any of the criticisms made of the defender's decision, he invited me to remit the matter to the defender for re-consideration.

[52] The defender's agent took me through a careful review of the statutory provisions, with a useful comparative commentary on the statutory predecessor provisions.

[53] In summary, he emphasised that the Review Application proceeded on the basis of a "ground relevant to one or more of the licensing objectives" (s.36(3), 2005 Act), namely, "preventing crime and disorder" (s.4(1)(a), 2005 Act). By definition, this licensing objective (and the related ground for review) was preventative or anticipatory in nature. Section 36(3) did not require that a breach of the licence be established, merely that a licensing objective had been "engaged". It was submitted that Parliament had conferred a wide margin of latitude upon the Licensing Board to determine whether a licensing objective had been "engaged". Once engaged, it was argued, the defender enjoyed a further wide discretion as to the nature of the steps considered "necessary or appropriate" for the purpose of achieving or promoting any of the licensing objectives, in terms of s.39(1) of the 2005 Act. It would be odd, submitted the defender's agent, if the wide scope of judgment open to a Licensing Board upon considering an initial application was narrower when considering a Review Application. He submitted that the defender's determination as to whether or not a licensing objective had been "engaged" (in terms of s.36(3)) and as to the steps considered "necessary or appropriate for the purposes of any of the licensing objectives" (in terms of s.39(1)) should not lightly be interfered with by the Court on appeal, given the margin of discretion or latitude conferred by Parliament upon the Board as the primary decision-maker. Reference was made to Tesco Express v Birmingham City Council and Chief Constable of West Midlands Police [2007] 70 LR 34, Hughes v Hamilton District Council 1991 SC 251, Latif v Motherwell District Licensing Board 1994 SLT 414. Specific reliance was placed upon the Inner House Opinion in Hughes (supra) (at page 256) to the effect that "once there is relevant material before a Licensing Authority the question was to the weight to be attached to that material and the significance of any other balancing factors must be for the authority to be assessed".

[54] Notwithstanding the foregoing, the defender's agent conceded that the defender would nevertheless require to be satisfied that the key allegation (namely, the unlicensed sale and supply of alcohol outwith permitted hours) had been established, and that there was a proper factual basis for that conclusion.

[55] Turning to the specific grounds of appeal, firstly, the defender's agent submitted that the defender was perfectly entitled to determine the Review Application on the basis of the material before it, notwithstanding the existence of a material factual dispute between the parties. He submitted that the defender was entitled to prefer the information provided on behalf of the Chief Constable, and to treat that police information as sufficient to satisfy the defender that the grounds for review were established, irrespective of the view taken by the procurator fiscal (or any other body) in the exercise of a separate jurisdiction.

[56] Secondly, the defender's agent submitted that the Statement of Reasons was adequate. He acknowledged that, reading in isolation the sentence in the Statement to which objection had been taken, it might be argued that the Board had overlooked or ignored the documentary material provided by the pursuer. However, he argued that the correct approach was to read the sentence in the context of the Statement of Reasons as a whole. Significantly, the Statement disclosed (in the earlier paragraphs) that the pursuer's Affidavits and written statements were explicitly acknowledged to have been produced to the Clerk in support of the pursuer's position. In addition, the Statement of Reasons makes explicit reference to the Transcripts, and these Transcripts also plainly record the disclosure of the pursuer's evidence at the Review Hearings. The defender's agent submitted that, properly interpreted, the sentence relied upon by the pursuer should be understood as meaning no more that the Board concluded that no adequate information or material had been provided by the pursuer to persuade the defender to prefer that information over the evidence provided by the Chief Constable.

[57] The defender's agent argued that the Statement of Reasons did not require to discuss or disclose every nuance of evidence presented to the defender, or to explain every facet of the Board's reasoning. The Reasons, as issued, were sufficient to leave an informed reader in no substantial doubt as to the basis of the decision. The basis of the decision was, in short, that the defender had preferred the police evidence.

[58] I asked the defender's agent to clarify where, in the Statement of Reasons or other documents, the informed reader could ascertain why the defender had preferred the police evidence over the documentary material produced for the pursuer. The defender's agent conceded that this may not be entirely clear, but reiterated that every nuance of the decision did not require to be disclosed in the reasons.

[59] In the third place, the defender's agent defended the proportionality of the steps taken by the defender, once it had been satisfied that the ground of review had been established. The defender's agent noted that the pursuer had been issued with a written warning in September 2011 following a separate Review Application (relating to an alleged breach of the licence). In those circumstances, it was appropriate and proportionate that the sanction be escalated, in this particular case to the level of a short suspension.

[60] The defender's agent invited me to refuse the appeal. If I was not minded to do so, I was invited to remit the matter to the Licensing Board for re-consideration, as the appropriate decision-maker in such matters.

 

Discussion

[61] I have concluded that the appeal should be upheld. The defender's decision on 19 March 2012 (to suspend the pursuer's premises licence) should be reversed and the suspension should be recalled. I explain my reasoning below.

 

Failure to take due account of relevant evidence

[62] Firstly, the defender's Statement of Reasons (section 10) discloses that the defender failed to take due account of relevant evidence in reaching its decision. This failure constitutes an error of law, in terms of s.131(3)(a)(i) of the 2005 Act.

[63] To explain, despite its length, the relevant part of the defender's Statement is fairly short. The crux of the Statement, purporting to explain the basis of the decision, appears in the final four paragraphs of section 10. In the third last paragraph (of section 10) the Statement narrates:-

"Following careful and full consideration of said submissions, the Board decided that the evidence of the Review Application was preferred. The Board was of the view that no information or material had been provided by the Licensed Premises Manager or his representatives to support their proposition that the police officers had not attended the premises until after 12.30 pm"

[64] The italicised sentence, read in the context of the Statement as a whole, is properly interpreted as disclosing that the Board, at the stage of reaching its conclusion, had overlooked, or disregarded, or otherwise failed to take due account of, prima facie relevant evidence produced by the pursuer, namely the three Affidavits and two handwritten statements exhibited at the Review Hearings.

[65] Quite properly, the defender's agent invited me to read the italicised sentence, not in isolation, but in the context of the Statement as a whole. I was reminded that in the preceding paragraphs of the Statement explicit reference is indeed made to the fact that the three Affidavits and two handwritten statements were produced to the Clerk of the Board "supporting [the pursuer's] position that the police officers...attended after the premises opened at 12.30 pm". In that context, I was invited to interpret the italicised sentence as meaning no more than that no sufficient information or material had been produced by the pursuer to persuade the defender to prefer the pursuer's version of events over the police account.

[66] However, in my judgment, the mere acknowledgement (earlier in the Statement) that the pursuer's material had indeed been produced to the Clerk is not sufficient, in the face of the explicit assertion that followed, to indicate to an informed reader that the material had then been duly considered by the Board in its deliberations and decision-making. The explicit, unqualified and unequivocal assertion (in Section 10 of the Statement) that "no information or material had been provided by [the pursuer]...to support their proposition that the police officers had not attended the premises until after 12.30 pm" would be properly interpreted and understood, by an informed reader, as indicating that the defender had not taken account of the pursuer's documentary evidence at the critical stage of deliberating upon and reaching its decision (whether by reason of having disregarded it or having overlooked it). That assertion cannot properly be interpreted as indicating that the defender had taken any account of the pursuer's evidence, or had carried out any assessment of the weight to be attached to it.

[67] For that reason, the defender's decision cannot stand.

 

Inadequacy of the reasons given for the decision

[68] Secondly, even if the defender did take account of the pursuer's evidence, in my judgment the defender's decision of 19 March 2012 cannot stand because no adequate reasons were given for the decision. This failure constitutes an error of law and a failure to exercise the defender's discretion in an unreasonable manner, in terms of Section 131(3)(a)(i) of the 2005 Act.

[69] The duty upon an administrative decision-maker, such as a Licensing Board, was not in dispute. In short, the decision must leave the informed reader (and the Court) in no real and substantial doubt as to the reasons for the decision, and as to the material considerations that were taken into account in reaching it. The classic formulation of the test appears in Wordie, supra., (at page 348 per Lord President Emslie) followed, in the context of appeals from Licensing Board decisions, in Robertson and Mirza, supra.

[70] The obligation to give reasons is designed not merely to inform the parties of the result of the Board's deliberations, but to make clear to the parties, and to the Court, the basis on which that decision was reached. Adequate reasons explain not only what the decision is, but how and why it was reached. By explaining how and why it was reached, an informed reader can satisfy himself that the decision was reached in conformity with principles of natural justice (Albyn Properties Ltd v Knox, supra., at page 43).

[71] Of course, it is not necessary for a Statement of Reasons to condescend in detail upon the precise thinking which lies behind the reasons actually given (Ranachan v Renfrew District Council 1991 SLT 625). However, an informed reader (being a person who knows what the proceedings are about and who may even be a party to the proceedings) should be able to understand from the Statement of Reasons what the reasoning was that led to the decision (Robertson , supra).

[72] The fatal flaw in the Statement of Reasons is that the Statement gives no insight whatsoever into why the information provided by the Chief Constable was preferred. [73] The Statement offers no explanation of, or discussion upon, the nature or quality or merits of the conflicting evidence presented to the defender. The Statement offers no comment upon the source, form, content or substance, or credibility or reliability, of the conflicting material presented to it. In particular, the Statement sheds no light on why the police evidence was preferred to the pursuer's evidence. The result is that an informed reader is left in real and substantial doubt as to why the defender chose to accept the police evidence over the pursuer's evidence.

[74] Absent any such explanation, an informed reader might assume that the defender had simply flipped a coin. No doubt, that would be an incorrect assumption in this case. But no better explanation is offered.

[75] It is precisely to avoid opaque, arbitrary or irrational decision-making (or the appearance of such) that adequate reasons are required - to explain what was decided, and how and why.

[76] The reasons need not be extensive or intricate. They merely require to be reasonable, rational, and founded in fact.

[77] For this reason also, the defender's decision cannot stand.

 

Method of Disposal of the Appeal

[78] Having concluded that the defender's decision cannot be allowed to stand, I considered whether it was appropriate to remit the matter to the defender for re-consideration or to make such other order as may be available in terms of Section 131(5) of the 2005 Act.

[79] Having regard to the comparatively minor, and relatively simple, nature of the single key issue in dispute; the date on which it allegedly occurred (it is said to have occurred over 8 months ago); the time and money already expended to date in seeking to determine the issue; and the fact that I had available to me all the submissions and documentary material that were available to the defender at the continued Review Hearing, I concluded that it was appropriate, and in the interests of justice, that I bring the matter to an end, one way or the other, by determining the merits of the review application now, in such manner as would have been open to the defender itself.

[80] Having decided to determine the merits of the review application myself, I have considered whether I should exercise my discretion to hear evidence.

[81] In my judgment, it is neither necessary nor appropriate to do so.

[82] In reaching that decision, I take account of the fact, firstly, that no motion was made for evidence to be heard. Secondly, it is not suggested that any party has suffered, or will suffer, any specific prejudice as a result of a failure to hear evidence. Thirdly, I have considered the nature and age of the key allegation, and procedure followed to date to try to resolve it. Fourthly, and most importantly, I have considered the overall fairness of the procedure to date. In my opinion, both the pursuer and the applicant for the review have been treated in an equal and fair manner, with equal and ample opportunity to consider, respond to, and vouch their respective allegations.

[83] In this latter respect, the present case may be distinguished from the decision in Nazir Ahmid v City of Glasgow Licensing Board, supra. The Ahmid decision illustrates a scenario where, in order to ensure equality of treatment and conformity with natural justice, a Licensing Board ought to have exercised its discretion to hear evidence. In my judgment, the critical distinguishing feature of the Ahmid decision is that by the date of the adjourned hearing in that case, the appellant was not receiving an equality of treatment because he was, at that stage, confronted, for the first time, with police statements produced on behalf of the Chief Constable, which were "rather more detailed and extensive than that which had previously been available" (Ahmid, pages 11-12, K-A). In other words, the evidential landscape had changed significantly; the appellant had not been afforded an adequate opportunity to respond; and all this had occurred in the context of multiple disputed issues of fact.

[84] In contrast, a feature of the present case is that the Chief Constable and the pursuer do indeed appear to have been afforded equality of treatment. Each party had been given the same opportunity to produce material in support of their respective allegations on the single, simple key issue in dispute. Each had been able to meet evidence with evidence. Neither party claimed to have been "ambushed" by the production of detailed evidence of which prior notice had not been provided. Neither party invited the defender to hear evidence. Both parties had, and took, the opportunity to make submissions regarding the allegations. In this sense, there had been equality of treatment. A similar conclusion was reached by Lord Cullen in JAE (Glasgow) Ltd (at page 1172 D).

 

Determination of the merits of the review application

[85] Turning then to consider the merits of the review application, having considered, assessed and weighed the whole material presented to the defender, I am not satisfied that the grounds for review are established.

[86] I reach that conclusion for the following reasons.

[87] Logically, the onus or burden of proving the key allegations, on the balance of probabilities, to the satisfaction of the decision-maker, lies on the Chief Constable as the applicant for the review (Walker & Walker, The Law of Evidence in Scotland, 3^rd ed., paras.2.2.1 - 2.2.6).

[88] The Chief Constable has provided relevant material (in the form of the review application, the supplementary letter 9 March 2012 and related oral submissions) which prima facie supports the key allegation (namely that alcohol was served outwith permitted opening hours). In response, the pursuer has provided relevant material, of a broadly equivalent nature, form and quality, which disputes and directly contradicts that allegation.

[89] Like the defender, I am entitled to take all of the material presented into account, and to assess the weight to be attached to it. Having done so, I am faced with two competing and irreconcilable accounts of the alleged incident. Having carefully analysed all of the material, I can detect no substantial error, illogicality, irregularity, discrepancy, inconsistency, contradiction, ambiguity, imprecision, incongruity or absurdity within the material, or any other substantial reason, ex facie or intrinsic, to undermine or diminish the credibility or reliability of either version of events, or otherwise to justify, on objective grounds, preferring one version over the other.

[90] Neither account can be said to be more likely than the other. Each version is as likely as the other. On the material before me, without having heard from the witnesses, I cannot resolve which of these two irreconcilably different accounts should be preferred.

[91] No doubt, in seeking to resolve the dispute between the competing accounts, specific comments and criticisms might have been made of the nature and quality of the material produced by both the pursuer and the Chief Constable. For example, it may have been noted that the material provided for the Chief Constable was conceded to be a "summary" of original source material; and that the original source material (comprising the police officers reports), upon which both the "summary" and submissions at the Hearings were based (see paras. [25] & [27], above), was not produced. In contrast the material provided by the pursuer bears, at least, a degree of prima facie authentication by the authors; and none of the material bears, in nature, to be a summary or precognition. Nevertheless, in the present case, I have decided not to attach significant weight to those distinctions. Instead, the conclusion I have reached is that the competing material produced is of broadly equivalent nature, form and quality. Without having heard evidence from the witnesses, on the material made available to me I cannot resolve which of these irreconcilably different accounts should be preferred.

[92] In the result, in my judgment the Chief Constable, as the applicant in the review application, has failed to discharge the onus of proof incumbent upon him. I am not satisfied that the grounds for review have been established, on the balance of probabilities.

 

The resolution of disputed facts

[93] Finally, this appeal raised an issue of general interest, namely whether, in the context of a review application, a Licensing Board could ever properly be satisfied that a disputed issue of fact was established, without hearing evidence from witnesses.

[94] In deference to the careful submissions made by the parties' agents on the issue, I offer my own opinion on the matter.

[95] The position advanced by the pursuer's agent was unashamedly stark. He argued that, faced with a dispute on a material factual issue, a Licensing Board could never properly prefer one version over the other, unless evidence was heard from witnesses; and, therefore, it followed, if evidence was not heard from witnesses, a Licensing Board could never properly be satisfied that the ground for review was established. (It may be noted in the present case that the pursuer did not explicitly request, at any stage, that the defender should exercise its discretion hear evidence.)

[96] I am not persuaded that the pursuer's agent's submission is correct as stated.

[97] The logical consequence of the pursuer's submission would be that Licensing Boards would routinely find themselves disabled from reaching a decision on a review application by virtue merely of a denial of the applicant's material factual allegations, unless the Board then exercises its discretion to hear evidence to resolve the conflict.

[98] Although the present case turned on the issue of onus, it seems to me that there may well be other cases where, depending upon the circumstances, notwithstanding the emergence of a dispute upon a material issue of fact, that dispute may well be capable of being resolved by a Licensing Board, without the necessity of hearing evidence from witnesses.

[99] To explain, a Licensing Board is entitled to reach a decision on a review application on the basis of the material before it. In this context, such material means all information (which may include documents, or submissions or objections, written or oral: JAE (Glasgow) Ltd, supra: page 1171 J) which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. The Board can take account of any material which, as a matter of reason, has some "probative value" in the sense so described. In other words, the Board must not spin a coin, or consult an astrologer, or proceed on a whim, prejudice, or assumption. If the material is capable of having any probative value, the weight to be attached to it is a matter for the Licensing Board as decision-maker.

[100] The mere fact that material is disputed, or that the Board is faced with conflicting versions of events, does not necessarily disable the Board from reaching a decision to find the grounds for review established. Rather, if there is a dispute between the parties on a material issue of fact, and rebuttal material is presented, the value to be attached to those conflicting pieces of material remains a matter for the Board to assess, as the decision-maker.

[101] The foregoing is a broad summary of the approach enunciated by Diplock L.J. in R. v Deputy Industrial Injuries Commissioner, ex p. Moore [1965] 1QB 456 at pages 487-488, as followed by Lord Cullen in JAE (Glasgow) Ltd, supra. Lord Cullen's observations on this issue in JAE (Glasgow) were themselves approved by the Inner House in Chief Constable of Strathclyde Police v North Lanarkshire Licensing Board 2004 SC 304.)

[102] Thus, for example, it may be that, having carefully analysed all of the conflicting material presented to it, a Licensing Board may properly detect a substantial error, illogicality, irregularity, discrepancy, inconsistency, contradiction, ambiguity, imprecision, incongruity or absurdity within the material, or some other substantial reason, ex facie or intrinsic, to undermine or diminish the credibility or reliability of either version of events, or otherwise to justify, on objective grounds, preferring one version over the other.

[103] That approach is consistent with the structure of the Act, which envisages that applications of this nature ought to be heard and disposed of expeditiously and with a minimum of formality (JAE (Glasgow) Ltd, (supra) page 1171 J). It is also consistent with sections 38(5) & (6) of the 2005 Act which expressly empower a Licensing Board, in determining a review application, to take into account such information, obtained from such persons, and in such manner, as it thinks fit.

[104] However, a Licensing Board's decision-making function is, of course, subject to an over-riding requirement of natural justice (JAE (Glasgow) Ltd, page 1171 K).

[105] In certain cases, in order that the requirement for natural justice can be met, it may be appropriate for a Board to exercise its undoubted discretion to hear evidence. For example, it may be appropriate for the Board to exercise its discretion to hear evidence if that is necessary to ensure an equality of treatment between the parties, or otherwise to achieve a fair hearing. Such a situation might arise, for example, if one party has been, or will be, unable to meet evidence with equivalent evidence. However, "the mere fact that the Board decide to proceed upon one type of material and not upon another would not of itself indicate a failure to comply with natural justice. What matters is whether the Board, in so proceeding, has denied a party that equality of treatment which is involved in the right to fair hearing" (JAE (Glasgow) Ltd, supra, per Lord Cullen at 1171 K). However, in my judgment, the necessity for evidence to be heard in such cases would arise, not merely from the fact that there was a factual dispute but, rather in order to afford a fair hearing to the disputing parties and to give proper equality of treatment to each on the material disputed issues of fact.

[106] Of course, in other cases, the Board might simply decide that the simplest and most expeditious way to resolve a disputed issue of fact is to hear evidence from witnesses, rather than to proceed any further on conflicting submissions or documents. But the Board would not be obliged to do so, unless that was necessary to afford equality of treatment to the parties or otherwise to achieve a fair hearing.

 

Decision

[107] For the reasons explained above, I shall uphold the appeal, reverse the decision of the defender made on 19 March 2012, and recall the suspension.

[108] As the pursuer has been successful in the appeal, I shall award the expenses of process as taxed to the pursuer.

 

 

 

 

Sheriff of Glasgow and Strathkelvin