Scottish Court of Session Decisions

The appellant, who was the holder of an off-sales licence in respect of premises at 1129/1133 Aikenhead Road, Glasgow applied to the respondents for renewal of that licence. At an adjourned meeting on 20 October 1996, the Board refused to renew the licence on two grounds. The first ground was that the appellant was not a fit and proper person to be the holder of a licence in terms of section 17(1)(a) of the Licensing (Scotland) Act 1976; the second was on the grounds of public nuisance, in terms of section 17(1)(c) of the 1976 Act. The appellant appealed to the sheriff who held that the respondents' decision, so far as based on section 17(1)(a) of the Act, was vitiated by misdirection in law and a breach of natural justice but held that there was no reason to interfere with their decision so far as based on section 17(1)(c) and, accordingly, refused the appeal. The sheriff's decision was given on 2 March 1999. It was explained to us that there had been reasons for the delay, including a sist for a period of about a year, but the reasons were not expanded upon. The appellant appealed to this court and his appeal was heard on 17 February 2000. After hearing the parties, we determined to dismiss the appeal and indicated that we would give our reasons in writing.

At their meeting on 25 October 1996, the respondents had before them a letter from the Chief Constable of Strathclyde Police dated 2 October 1996 containing certain observations on the application: and they also had written objections from seven objectors who also appeared or were represented at the meeting. So far as the Chief Constable's observations are concerned, the Board, in their reasons, say:

The respondents then say that they had no hesitation in regarding the incident as serious in licensing terms but that they took the view that despite the sub judice rule they were bound to make enquiries and be satisfied that the applicant was a fit and proper person to hold a licence. They go on to say that they could see no reason why the applicant or his agent could not have responded to the information provided by the Chief Constable and that it was not sufficient to indicate, as had happened, through the applicant's agent that the appellant was not prepared to make any response. The reasons then continue:

In the appeal to the sheriff, that part of the respondents' decision was attacked on three grounds. The first was that the respondents had misdirected themselves by holding that, in effect, there was an onus on the applicant to satisfy them that he was a fit and proper person to hold a licence, whereas in Din v. City of Glasgow District Licensing Board 1996 S.L.T. 363 this court had held that the proper question for the Board was whether it had been shown to their satisfaction that the applicant was not a fit and proper person to be the holder of a licence. The sheriff accepted that argument and the respondents have not appealed against his decision. The second ground on which the respondents' decision was attacked was that there was a lack of factual basis for it: that is a matter to which we shall return in a moment. The third was that there had been a breach of natural justice arising from the circumstances in which the appellant's agent had responded to the Chief Constable's observations. It is not necessary to go into that part of the case in any detail. The sheriff held that there had been a breach of natural justice and that decision also has not been made the subject of appeal.

The respondents' reasons for the decision under section 17(1)(c) are set out as follows:

The respondents then say that they had balanced the arguments advanced on behalf of the objectors and those advanced for the applicant and decided to prefer the views of the objectors.

In presenting the appeal, Mr. Skinner, on behalf of the appellant, began by renewing the submission that he had made to the sheriff in regard to the absence of a factual basis for the respondents' decision under section 17(1)(a) because, although he had been successful in that part of the appeal to the sheriff, the matter was, in his submission, relevant to a consideration of the respondents' decision under section 17(1)(c). He submitted that what the respondents had in effect done in dealing with section 17(1)(a) was to make a purported finding to the effect that there had been an incident, referred to by the Chief Constable, which indicated a serious lack of managerial control over the premises and lack of professional judgment on behalf of the appellant. The information provided by the Chief Constable had gone no further than to say that there was a report to the procurator fiscal of an incident of alleged under-age drinking. It had been explained to the respondents that the appellant had not personally been present at the time of the alleged incident but that instructions had been given to his staff that they should not serve under-age customers and that they should check on the ages of customers before serving alcohol to them. In the light of these considerations the respondents had had no basis at all for making the finding which, he submitted, they had made. Although the respondents' reasons dealt with the position of the objectors separately from the observations of the Chief Constable, it could not be supposed that the finding of a lack of managerial control could not have influenced their approach to the matters raised by the objectors. There was thus an inherent connection between the error which the respondents had made in relation to section 17(1)(a) and their decision under section 17(1)(c). The proper course, therefore, was, he submitted, to sustain the appeal and remit the whole application to be reconsidered.

It is well established that where a Board make a decision based upon two reasons, one of which is bad, the decision may nevertheless stand if there is ground for it which is not open to challenge. Clearly, that can only be so if the valid reason can be regarded as separate from and uninfluenced by the bad reason. In the present case we think, in agreement with the sheriff, that the respondents have clearly considered and dealt with the objection under section 17(1)(c) separately from and quite apart from their consideration of the matters raised in relation to section 17(1)(a). What the objectors were concerned about was the consequences for the neighbourhood of the presence of the premises and the conduct of the persons frequenting them. There was ample material before the respondents to justify them in accepting the propositions put forward on behalf of the objectors and there is nothing to indicate that, in assessing this part of the case, the respondents misdirected themselves or took into account any matter other than the issues raised by the objectors. In any event, we are not satisfied that the respondents' reasons relating to the section 17(1)(a) point can properly be read in the way suggested on behalf of the appellant. Counsel for the appellant fastened on one sentence in the statement of reasons which might, perhaps, if read by itself, bear the meaning attributed to it but which in our view is properly to be read as part of the reasoning which led up to the respondents' decision, which was primarily based upon the failure of the appellant and his solicitor to respond to the Chief Constable's observations. In the whole circumstances, we agree with the sheriff that the appeal directed to the point under section 17(1)(c) falls to be rejected.

For these reasons, we dismissed the appeal.