Scottish Court of Session Decisions

[1] In this appeal the appellants are the City of Glasgow Licensing Board. The respondent is a shopkeeper in Glasgow. It is convenient to refer to the present appellants as "the Board" and the present respondent as "the applicant". On 21 March 1997, the Board refused an application by the applicant for renewal of his off-sales licence for his shop premises at 1090 Cathcart Road, Glasgow. The grounds of refusal in terms of section 17(1)(a) of the Licensing (Scotland) Act 1976, which provides that:

were that the applicant was "not a fit and proper person to be the holder of a licence". The applicant appealed that decision to the sheriff (Kerr) who upheld his appeal on 31 December 1997 on the grounds that the Board had erred in law by failing to apply the correct test by inverting onus, and he remitted the case to the Board for reconsideration of their decision. On 15 May 1998, the Board refused the applicant's application on the same ground. The applicant again appealed to the sheriff. Parties were agreed on this occasion that the sheriff (Mitchell) should either sustain the appeal and grant the application for licence renewal or refuse the appeal, it being agreed that further remit for reconsideration was inappropriate. On 23 July 1999, the sheriff sustained the applicant's appeal and granted the application. He did so on grounds which included holding that the Board had no proper basis in fact on which to hold that the applicant was not a fit and proper person to be the holder of a licence. This is the only issue on which we heard submissions for the Board as we were satisfied that the sheriff's conclusion on this issue was correct and decided the appeal in the applicant's favour on that account without hearing submissions for the applicant. Accordingly we confine our opinion to the issue mentioned.

[2] The applicant has held an off-sales licence for the shop premises concerned since 1991. On both occasions on which the applicant's application was refused the Board's refusals related to a single incident. Our references to information before, and to the decision of, the Board hereinafter relate to the hearing on 7 April and 15 May 1998, namely the hearing before Sheriff Mitchell to which the present appeal relates. The basis for refusal of the application was that on 23 March 1996 an assistant in the applicant's shop sold alcoholic drink, namely strong cider, to a 15 year old boy without taking any steps to check the purchaser's age. The applicant was abroad at the time and was reliant on his assistant for his reaction to the allegation. The applicant was told by his assistant that he had made a sale to the older of two males who came into the shop but not to the youth to whom the allegation related. Police information as to the assistant's position was different in that it suggested that the assistant admitted not checking the age of a purchaser who said to the police that he was 15. In any event, whatever the true position may have been, the issue upon which we decide this appeal being whether the Board had before them material upon which they were entitled to conclude that the applicant was not a fit and proper person to be the holder of a licence, we proceed upon the information before the Board, viewed in its most unfavourable light for the applicant and, in particular, on the basis that the alleged sale of alcohol to someone who was 15 years of age, and accordingly under the permitted minimum age of 18 to make such a purchase, did in fact take place. We record at this stage that issues were raised as to the adequacy of the Board's concern with ascertaining just what did in fact happen but, in the event, such issues are academic to our decision in this appeal and, as indicated, we did not hear argument upon them. We will revert to the nature and extent of the police information upon which the Board's refusal was based. However, it is convenient to note at this stage that that information related to police observations on the application, there being no objection to the application by the police or, indeed, by any other party. The matter was reported by the police to the procurator fiscal but no criminal proceedings were taken.

[3] The reasons given by the Board for refusing the application were:

The sheriff, in sustaining the applicant's appeal, said, after dealing with other issues raised before him:

The sheriff explained earlier that his reference to what was said by Sheriff Kearney in the Sohal case related to the requirement of moral fault in order to hold someone as being not a fit and proper person to be the holder of a licence.

[4] Counsel for the Board submitted that the present appeal should be allowed and that the sheriff had erred in holding that the Board had no proper basis in fact on which to hold that the applicant was not a fit and proper person to be the holder of a licence. In the course of his submissions he accepted that there had been unchallenged information before the Board to the following effect. When the applicant took on a new member of staff the applicant set aside a morning to give that person training on the provisions of the Licensing Act. The new member of staff was told the policy was that if they were in any doubt they required to seek identification from a customer as to their age. Notices supplied by the police and put up by them warned that, "If you buy for underage be prepared to pay the bill" and that there was a £400 fine for anyone who bought anything for someone underage. There was a third notice on display saying that no-one underage would be served. The applicant required a passport or a bus card by means of identification. These have got photographs of the person and the birth dates for them. A driving licence would be accepted but if the driving licence was to be proffered the customer would require to sign a piece of paper so that the signature could be checked. Accordingly, the policy that staff were told to operate was that if they were in any doubt they were to seek proof from the customer as to the customer's age and if the customer could not supply that he or she would not be served with alcohol. The applicant checked to see that this system was carried out and he could do so visually. He could watch the staff to make sure they carried out his instructions, along with his brother, who also worked in the shop. Some customers would be asked several times to produce identification. The shop was known in the area to operate a strict policy. It was known as a shop that did not serve underage people. The applicant's staff were instructed by him not to serve people under the influence of alcohol and not to allow older people to buy for youngsters. The applicant had been trading since 1991 without complaint, nor had there been any complaint of any nature between the time of the alleged incident and the hearing before the Board, a further period of more than two years. Some positive support for what was said on behalf of the applicant came from the observation of the police superintendent at the hearing who said that, while police observations at the time of the incident followed complaints in the community about sales of alcohol to children, the police did not have information to suggest that the applicant's shop was involved in such sales.

[5] Counsel for the Board also accepted that there was no suggestion in the information supplied by the superintendent to the Board to suggest that the underage purchaser was obviously under 18. The information was to the effect that the youth concerned was tall and fresh-faced and that the two police officers concerned "formed the opinion" that he was under 18 years of age. Counsel accepted that it appears that the police had observed the youth leaving a group of other youths and crossing over to enter the shop. The youth himself had supplied information that he had been with some mates and had said that he would try and get the cider as he was the tallest. Counsel accepted that the assistant in the shop would not have seen what happened outside the shop and been witnessed by the police who had their suspicions aroused by what they saw.

[6] Counsel submitted that nevertheless, on the information before them, the Board were entitled to make the conclusion which they did as to the applicant's fitness to be the holder of the licence because, once they had held that the sale had actually taken place, they were entitled to reach that conclusion if the applicant failed to give a satisfactory explanation why his staff training system had failed to prevent the underage sale on the occasion in question. He referred to the case of Davenport v. H.M. Advocate [1994] G.W.D. 40-2392 in support of this submission. In particular, he submitted that a licensing board was entitled to take a similar view to that provided for by statute in the case of criminal prosecution. In the Davenport case, the appellant was found guilty in a District Court of a contravention of sections 67 and 68(1) and (7) of the Licensing (Scotland) Act 1976. The charge was that he, "being the holder of a licence in respect of licensed premises known as Cheers, 2 Airdrie Road, Condorrat did on 11 November 1993 in these premises by the hands of his employee or agent Marie Brooking sell alcoholic liquor, namely a half bottle of vodka, to Heather Beattie aged 15 years, a person under the age of 18". In the case there were specific findings that:

Miss Beattie had not been asked to confirm her age. In the course of evidence in the case it emerged that the employees could not remember when advice as to not serving anyone under the age of 18 and asking for photographic proof of age was given to them and it is clear that the conclusion which the justice drew was that they were vague about what they were being required to do. In terms of section 67(2) of the Licensing (Scotland) Act 1976:

In terms of column 3 of Schedule 5 a licence holder has vicarious responsibility for the selling by a member of his staff of liquor to a person under 18, namely a sale which is an offence in terms of section 68(1) and (7). The court held that the justice was entitled to hold that the defence that the licence holder had exercised all due diligence to prevent the occurrence of the offence in terms of section 67(2) had not been made out in the circumstances of the case.

[7] Counsel also referred to the case of McAllister v. East Dunbartonshire Licensing Board 1998 S.L.T. 713. This was an appeal involving refusal of an application for a betting office licence. Counsel referred to the case in support of his submission as to there being an onus on the applicant in the circumstances of the present case. Lord McCluskey, giving the Opinion of the Court, said (at page 719L):

[8] Counsel submitted that, in the whole circumstances, the sheriff had erred on the issue concerned.

[9] As indicated, we did not call upon counsel for the applicant to reply. In our opinion, the sheriff was clearly right to conclude as he did on this issue. In our opinion, the attempt to assert that there is an onus on an applicant wherever a member of staff has carried out a sale to an underage customer to provide a satisfactory explanation for such sale in order to avoid being held to be not a fit and proper person to hold a licence is wholly misconceived. The submission was based on the proposition that a licensing board was entitled to take a similar view to that which arises in a criminal prosecution. In our opinion, this is clearly not so. The onus on a licence holder in a criminal prosecution in the circumstances of a case such as the Davenport case is an onus which is clearly stated in the statutory provisions to which we have referred. There is no such statutory onus in the circumstances of the present case. The very existence of a statutory onus in a criminal context merely underlines the absence of such onus where there is no such statutory provision, other differences of context apart. Furthermore, it is very clear to us that to expect a licence holder such as the applicant to come forward with a "satisfactory explanation" of his assistant's conduct in making a sale to an underage customer would be apt to place such a licence holder in an impossible position. In particular, in a case such as the present, where all that is alleged is a single sale to a customer not suggested to be obviously under 18 and all other information suggests that the applicant is a shopkeeper who has been commendably diligent so far as preventing underage sales is concerned, the circumstances are consistent with no moral guilt or lack of any due diligence whatsoever on the part of the applicant. Whether the sale was due to failure to recognise the customer as someone who might well be under 18 because of momentary inadvertence, an act of stupidity, deliberate breach of duty or for some other reason can hardly be expected to be within the knowledge of the applicant in the circumstances of a case such as the present, particularly where the applicant was told by the assistant that no underage sale took place. Whatever the reason, it does not follow that the applicant can properly be held to be not a fit and proper person to be the holder of a licence simply because such a sale has taken place. We agree with the sheriff's acceptance of the submission made for the applicant that the Board made an unwarranted inference in holding that any sale by the appellant's employee of alcohol to an underaged person ipso facto indicated a serious lack of managerial control over the premises and a serious lack of professional judgment thereby rendering the appellant unfit to hold a licence. In the result, we agree with the sheriff that the Board were not entitled to reach the conclusion that the applicant was not a fit and proper person to be the holder of a licence and, accordingly, refuse the Board's appeal.

[10] At the request of counsel for the Board we stress that submissions in this appeal were confined to the issue on which we have decided the appeal. In the course of his Note, the sheriff stated that in his judgment reconsideration of the decision of a Licensing Board in terms of section 39(6) of the 1976 Act involves a rehearing - i.e. a hearing de novo of the application. He referred to section 39(7)(a). Counsel for the Board said that the sheriff had also recorded his view to that effect in the case of Sood Enterprises Limited v. City of Glasgow Licensing Board 1999 S.L.T. (Sh. Ct.) 51 (at page 55L). Counsel asked us to record specifically that we had not heard any argument on that matter and that this court should not be taken as making any determination on that point, and this we do. Clearly there are circumstances where a full hearing de novo might seem to be unnecessary for the purposes of the remit concerned but, as the point raised is one of statutory interpretation upon which we have not heard argument, it is not one with which we can properly deal in this appeal.