Scottish Court of Session Decisions

[1] On 12 March 1999, the City of Glasgow Licensing Board refused an application by Risky Business Limited for the provisional grant of a new Entertainment Licence for premises at 86 Maxwell Street, Glasgow. The applicants appealed against that refusal; and by interlocutor of 21 January 2000, the Sheriff upheld the appeal, and reversed the Board's decision to refuse the application. He upheld the company's first and third pleas in law, each of which, upon different grounds, was to the effect that the Board should be directed to grant the application. In terms of the interlocutor, the Sheriff purports himself to grant the application; but it is common ground that this is an error, and that what he should have done, upon the view which he had taken of matters, was to direct the Board to grant it, rather than do so himself.

[2] Following upon the refusal, the Board was requested to give reasons for its decision, and did so in terms of a letter dated 26 April 1999.

[3] The application was an application for a new licence; and in terms of subsection (2) of section 17 of the Licensing (Scotland) Act 1976, as amended, the grounds on which such an application may competently be refused by a licensing board are those set out in subsection (1). Subsection (1) provides that:

Grounds (a) and (d) are not in point in the present case, and while we have set out the terms of ground (c), for reasons which will appear, the Board refused the application on the basis that it found that ground (b) applied to the application.

[4] Before coming to the terms of the letter of 26 April 1999, something should be said as to the background to the application, and the terms and purpose of the application itself. In June 1994, the company applied for and was granted an entertainment licence in respect of the same premises at Maxwell Street, Glasgow. That application was unusual in that the premises were to be those of a proprietary club, open to members paying an annual subscription, and not to the general public. The application was granted on the basis that this would be a proprietary club with entertainment "as follows: for film shows, theatrical performances, live entertainment and including comedy shows, amateur talent competitions, live groups without amplification, and karaoke; and excluding discotheque and dancing.". The premises have been in operation since that date, on the basis of that entertainment licence. The present application for a new licence was seen as appropriate, because the company wish to alter the type of entertainment to be provided. In the present application, the nature of the entertainment to be provided is "Film shows, theatrical performances, live entertainment, comedy shows, amateur talent competitions, live bands without amplification, karaoke, DJ and exotic dancers." There is still no question of patrons dancing: as previously, the live entertainment will include dancing, watched, but not participated in, by the patrons. It is the introduction of "exotic dancing" which was seen as necessitating an application for a new licence. And it is the "exotic dancing" which lies at the heart of the reasons for refusal.

[5] In reaching their decision to refuse the application, the Board of course had a much fuller account of the nature of the proposed entertainment than is contained in the brief words of the application which we have quoted. In addition, they were aware not merely of the terms of the previous grant, but of the actual type of entertainment already provided within the premises. In relation to both past and future proposed use, one must distinguish between the two main spaces at the premises, a lounge bar at the front and a hall at the back. And it is convenient to say something about past use, before turning to the proposed changes and new forms of entertainment.

[6] When the 1994 application was granted the Board were informed of two distinct types of entertainment. The hall contained fixed seats, and certificated films, lasting approximately 90 minutes, were to be shown there. But there would also be live entertainment, with comedy shows, live groups and the like. However, over the years since 1994 it is clear that the "live entertainment" included girls in swimming costumes or other scanty or flimsy clothing, who in addition to acting as barmaids performed as "exotic dancers" on a special stage in front of the bar. This element of the entertainment was described in a 1995 newspaper article included among the papers, and counsel for the Board acknowledged that when it is said in the letter of 26 April 1999 that the Board were aware of the type of entertainment already provided, their knowledge extended to the fact that there was this type of entertainment. The submissions to them included the statement that because of the nature of the entertainment which was being given, there was extensive surveillance for the five years it had operated, without difficulty. There has been no suggestion at any stage of the proceedings that the operation of the premises over that period, with this type of entertainment, has given rise to any concern over the management or operation of the premises.

[7] The principal change which would be involved in terms of the new application relates to the use of the hall. The fixed seating would be replaced by removable seating. Until 5 p.m., the seats would be in place and the hall would be used as a cinema, as previously. But between 5 p.m. and 6 p.m., the seats would be removed, and the hall rearranged, as an entertainment hall, with a stage and two further small circular "stages" in the middle of the area. With that layout, and in accordance with existing extended hours, the premises would remain open to members until 3 a.m. The entertainment in the bar area would be much as before, with a small stage in front of the bar, providing entertainment for members generally. The new element which would be introduced, and for which the hall would be used, is that of "table dancing". This was defined for the Board (quoting a definition given at a previous hearing on another matter) as "dancing by invitation...off stage at the personal invitation of the person inviting the girl, the young lady to dance for him...". While the nature and scope of "table dancing" were discussed more fully, the essential starting point is that one is not concerned with dancing for an audience in general, but with a particular girl dancing for, and at the invitation of, a particular member. Correspondingly, that member would be expected to pay a standard tip or reward for the girl in question. As the name suggests, the dancing can be at or on an individual table; but at the premises in question, the table dancing would take place in the hall, on either the principal stage or the two circular stages in the middle of the space. There would be no physical contact between the dancer, on these raised stages, and the patron who had engaged her or others, who would be sitting or standing, presumably in quite close proximity, in the hall. Such a table dancing "session" would last about three minutes. The girl's clothing would be removed during the dancing, but not entirely.

[8] In these and earlier proceedings, terms other than "table dancing" have been used or referred to (for example, lap-dancing, go-go dancing and striptease). These may be somewhat different, and do not seem to help. The word "exotic" seems to be a customary usage, perhaps as a euphemism for "erotic". However, it is convenient to stick to the more specific expression "table dancing" to describe the type of entertainment which is envisaged. In this instance the "table" upon which it takes place is in fact a small "stage"; but the essential element of table dancing, that it is for an individual who has engaged the dancer and not an ordinary "on stage" entertainment for an audience in general, is evidently unaffected by the precise details of the dancing platform, placing the dancer on a separate level.

[9] The letter of 26 April 1999, setting out the Board's Statement of Reasons is quite long; but it is not necessary to repeat it in much detail. After intimating the statutory basis of the refusal, and dealing with various matters of background and procedure, the Board give a brief description of what is proposed, noting inter alia that the "table dancing" would be on "stages". The basis of the refusal is to be found in the succeeding six paragraphs.

[10] In the first of these the Board express concern at what they call inconsistencies in presentation: these seem largely to flow from the reference to "table" dancing without tables, and it is evident from the transcript that there was some confusion of understanding in this respect. However, it is not now suggested that there was or is any real problem in this respect. The next paragraph expresses further concerns, stating that certain matters seem uncertain and indicate a lack of forethought and preparation. The conclusion is that it was not clear how the proposed entertainment would be organised. However, it is not necessary to consider whether the Board were justified in taking that view of the matters in question: the concerns expressed in these paragraphs would not themselves constitute a reason for refusal, and they are essentially background to the succeeding paragraphs.

[11] The next two paragraphs deal with rather more specific concerns. First there are issues as to the numbers in the room, with "no proper limit" on numbers, and an implication that the situation could arise whereby the female performer and a paying customer could be on their own in this room, or that a female dancer could be alone in the cinema area with a group of "possibly intoxicated males." There is a concern that there would be "no clear separation between dancers and patrons" especially within the bar area but also within the cinema area if table dancing were to take place there. A contrast is drawn between this entertainment and "the type of regulated and controlled table dancing" taking place in other premises controlled in other ways - a point to which we shall return briefly at the end of this opinion.

[12] It is, however, only in the next paragraph that the Board move on from what one may call underlying views or concerns to the assessments which are said to give rise to the statutory ground of refusal. They say this:

After referring to certain observations of my own in Cinderella's Rockafella's Limited v. Glasgow District Licensing Board 1994 S.C.L.R. 591, and expressing the "clear view" that the premises were not suitable or convenient in terms of section 17(1)(b) "having regard to the combination of activities envisaged", the Statement of Reasons continues thus:

The principal foundation for the Board's refusal appears to lie in these last three sentences. Distinguishing the intended activities from those which had previously taken place, the Board go on to express the view that they had "the capacity to generate disturbance and confusion within the premises". However, this appears to be a reference back to what is contained in those three sentences. And while the Board note that the applicant had not produced certain documents, including a code of conduct, the purpose of any such documents is evidently seen as relating to this same area of concern - the risk of disturbance and trouble, and indeed violence, on the lines already mentioned by the Board. It is to be noted that no concern is expressed in relation to the public order and safety dealt with by section 17(1)(c).

[13] Before the sheriff, various matters were raised which need not concern us. And even in relation to matters which are before us, we do not find it necessary to embark upon a narrative of the submissions to the sheriff, which covered much the same ground as the submissions which were made to us. In dealing with the submissions to him, the sheriff notes that it was accepted by both sides that the "meat" of the Board's decision was to be found in the paragraph containing the three sentences to which we have drawn particular attention. The attack on the Board's reasons for refusal, then as now, was essentially that there was no proper factual basis for the decision. Referring to those same sentences, the sheriff says this:

The sheriff goes on to say that he was satisfied that there was no adequate material before the Board to justify such a conclusion, observing inter alia that at no stage during the proceedings on 12 March were the issues of violence, anti-social conduct or violent conduct of a sexual nature against women the subject of any mention. Mentioning that there was no material adverse to the application, the sheriff says that there was no proper basis for deducing even that violence was a possibility, let alone a probability. "At best, the purported reasons given in terms of section 17(1)(b) amount to mere speculation. Unless there is a direct factual link to the particular situation involved in the application, then the Board's reasoning is nothing more than nebulous." After dealing briefly with specific matters such as numbers and codes of conduct, the sheriff proceeds to dispose of matters on the basis that the grant of the application is justified, there being no adequate material before the Board to justify refusal.

[14] It did not appear to us that the submissions advanced by counsel on behalf of the Board raised any general question of law upon which there might be said to be doubt; and counsel for the respondents did not take issue with him on any point of this kind. Reference was made to Pagliocca v. City of Glasgow District Licensing Board, 1995 S.L.T. 181, Lord Murray at page 182I-J, and the other cases there mentioned, for the propositions that a Board is entitled to draw inferences from material before it, based on its own local knowledge and experience of licensing, and that it is fully entitled to act on its own impression and knowledge of local conditions, and not obliged to act only on evidence put before it. We were referred to Caledonian Nightclubs Limited v. Glasgow District Licensing Board, 1996 S.C. (H.L.) 29, Lord Jauncey at page 34, and Regina v. Hillingdon L.B.C., ex p. Puhlhofer 1986 1 A.C. 484 and in particular Lord Brightman's observations at page 518E, to the effect that where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum "ranging from the obvious to the debatable to the just conceivable" it is the duty of the court to leave the decision of that fact to the public body, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. These are familiar propositions and familiar authorities, and unsurprisingly were undisputed. The observations in Cinderella's Rockafella's relating to public violence were likewise undisputed, but conceded to have no direct bearing on this case). The respondents do not ask us, and did not ask the sheriff, to interfere with the Board's decision, if it had any proper basis in the material before them; nor were we, or the sheriff, asked to hold that the Board were not entitled to take into account, as part of that material, relevant local knowledge or experience acquired as Board members.

[15] Furthermore, it was accepted by counsel for the Board that the mere possibility of some undesirable sequel to the grant of an application was not a ground for refusal: the test was one of likelihood or probability, and since section 17(1)(b) was concerned with general issues of suitability and convenience, what was in issue was not the likelihood or probability of some individual but undesirable event occurring on some occasion in the future, but the likelihood or probability of such events constituting a feature or characteristic of the operation of the premises, so as to have a bearing upon their suitability or convenience for the sale of alcoholic liquor. Again, on this matter, it does not seem to us that there is any issue between the parties.

[16] Nonetheless, counsel for the Board suggested that there was a matter of general importance which was raised by this case. As we understood his submission, the sheriff's decision was said to raise doubts for licensing boards, as to the limits of their freedom to proceed upon the basis of their background knowledge and experience, which in the present case had been expressly invoked and relied upon. We are not sure that we have understood the nature of this supposed uncertainty. If a Board have some local knowledge, or some licensing experience, which they regard as relevant and wish to rely upon in reaching a decision, the position in relation to that material seems to me to be plainly the same as the position in relation to evidence: in explaining any reasoning, the knowledge or experience which is seen as relevant will have to be identified, just as any relevant part of the evidence would have to be identified. Indeed, it may be more important to identify the alleged knowledge or experience, which, unlike evidence, may not easily be identifiable by others. Quite apart from issues of fairness, which may make it important to raise certain kinds of supposed knowledge or experience at a hearing, in order to give the opportunity of response, any such knowledge or experience which forms a significant link or plank in a Board's reasoning will obviously have to be identified when the reasons are stated - although in many situations the matter may be a quite broad one, not capable of a break-down into detailed history. In the end, each case will depend upon what the Board say about their knowledge and experience, and what place these appear to have played in the reasoning which led to their decision.

[17] We return therefore to this case. The Statement of Reasons appears to us to show that the Board's decision was fundamentally defective, both in relation to the factual material upon which the Board proceeded, and in relation to the tests or criteria which the Board used, in proceeding to their conclusions and decision.

[18] It is true that the Board invoke their background knowledge and experience. But from the Statement of Reasons, we find it quite impossible to discover what background knowledge and what experience of licensing matters played a part in this decision. Knowledge and experience are invoked as the basis for the proposition that "the consumption of, and where it occurs, abuse of alcohol, can give rise to irrational and sometimes violent and anti-social conduct." No such basis seems necessary for that broad proposition. Some local knowledge or experience is perhaps also the basis for the Board's view that "the persons likely to resort to the premises would be a cross-section of the public", which otherwise looks like an unvouched and perhaps questionable assertion. It may also underlie the broad and incontrovertible words which follow - "whose reactions to this combination of entertainment and alcohol would be varied and unpredictable." And such general background knowledge may also underlie the comment that the situation "could" arise whereby a female dancer could be alone with a group of "possibly" intoxicated males.

[19] However, there is no suggestion that the Board had any background knowledge or experience indicating that at premises of this kind, with this sort of entertainment accompanying the supply of alcohol, consumption of alcohol was likely to be high, or to amount to abuse, or likely to involve groups of significantly intoxicated males. While they refer to the combination of the sale of alcohol with sexually explicit dancing, and treat this combination of activities as bringing the activities within section 17(1)(b), they do not suggest that they have any background knowledge or experience of this combination which would tell them whether the intake of alcohol would tend to be higher or lower, in such circumstances, than in premises where there was no entertainment or different entertainment. And whether there was a basis in knowledge and experience or not these expressions of view are all couched in terms of possibility or the like, without any conclusion in terms of likelihood, or frequency, or general probability.

[20] When one moves on to the last two sentences of the main paragraph, there is again no indication whether background knowledge and experience are relied upon, and again no progression from alleged possibilities to supposed likelihood or probabilities. The patrons "could" include individuals who under the influence of alcohol "could" be "disposed" to irrational and "sometimes" violent and anti-social conduct. "Potentially" this "could" include violent conduct of a sexual nature against women. So stated, these steps towards the decision have no foundation in other material which was before the Board. They have no alleged foundation in the Board's own knowledge and experience, apart from the points which we have already mentioned. They have no apparent foundation in any knowledge or experience which this Board appear to have, in relation to establishments or clubs of this kind. The reasoning seems to us (as counsel submitted to the sheriff) to involve mounting one possibility upon another. And overall, we consider that the sheriff was justified in using terminology such as "mere speculation" and "nebulous".

[21] Apart from any unidentified knowledge or experience which the Board might have had, the material before them seems to have been to the effect that this combination of alcohol and sexually explicit dancing is commonplace elsewhere, and not unknown in Scotland. There was no indication that it gives rise to the kind of trouble described, and apparently envisaged as a possibility, by the Board. Even the possibilities which they mention seem to us to be possibilities only in the widest sense, with nothing in the material which was before or known to the Board to suggest that there is any likelihood of such an event as they envisage occurring, far less of such events being a likely feature or characteristic of the proposed operations. The Board seem to us to have taken unsubstantiated generalities, and then to have stopped short of anything like the proper test.

[22] Counsel for the Board submitted that "on a fair reading" the Board had applied the proper test. We cannot read the Statement of Reasons as even suggesting that they applied the proper test. And if they did, they applied it to an unexplained hypothesis. We are in no doubt that the sheriff was entirely justified in deciding that the decision could not stand.

[23] 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 1994 S.L.T. 415. 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 reformulation 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 in terms of section 17(1)(b). 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 for refusal in terms of section 17(1)(b). With nothing to indicate that trouble of the type described by the Board was in the least likely, far less sufficiently likely to warrant a finding in terms of that head of the section, 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.

[24] Given the fundamental defects in the decision, we see no need to comment on matters such as numbers or a code of conduct: more precise information as to how the premises would be operated might help to eliminate some material risk in situations where such a risk could otherwise properly be held to exist. But in this case no material risk has been identified; and there is no indication that the "regulated and controlled" table-dancing in other premises is dependent on such regulation and control as averting trouble or violence which would otherwise be likely. Against the background of trouble-free management and operation of the present premises over a number of years, there is no basis for expecting inadequate or inferior regulation and control, suited to the new proposals. It is significant that the police, with their knowledge and experience, had no objection to the application. Detailed information on such matters is therefore insignificant in the circumstances.