Scottish Court of Session Decisions

(1) This is an application for judicial review at the instigation of the owners and operators of premises known as "The Shed", 26 Langside Avenue, Glasgow which operates as a nightclub and holds an entertainment licence for the sale and supply of alcoholic liquor in the premises. The premises were built in 1914 as a dance hall and had been operated for such-like use more or less continuously since that time. The present petitioners acquired the premises and undertook their operation of them in January 1999.

[2] Prior to June 2000 the premises were operated as a nightclub on the basis of a public house licence and enjoyed regular extensions until 2am from Monday to Sundays and on Sundays from2.30pm until 6.30pm.

[3] At the respondents' statutory meeting in June 2000 they considered the petitioners' annual application for a regular extension of permitted hours in relation to an entertainment licence. The application was refused but was renewed by the petitioners at the respondents' statutory meeting in January 2001. At that meeting 19 objections were considered although there were none from the police or the local authority. The application was refused as was a motion on behalf of the petitioners for an order under section 64(9) of the Licensing (Scotland) Act ("the 1976 Act") which would enable the petitioners to make a fresh application at an earlier date than would otherwise be permitted when an application had been refused.

[4] The present application seeks judicial review of those decisions. In the debate before me, both junior counsel raised a substantial number of issues principally in relation to the European Convention on Human Rights, as incorporated into the law of the United Kingdom by the Human Rights Act 1998 ("the 1998 Act"). The petitioners' junior counsel submitted a written submission running to some 28 pages which junior counsel for the respondents felt obliged to deal with in some detail in her reply. However, the issues upon which senior counsel concentrated greatly narrowed the debate and I am able to dispose of much of the material presented by both junior counsel on the basis of what are now essentially agreed propositions.

They are as follows.

As focused finally by senior counsel the issue accordingly which I was requested to decide related to the following questions.

Before dealing with each of these questions in turn some reference requires to be made to the statutory framework.

[5] Entertainment licences were introduced by section 9 and Schedule 1 of the 1976 Act and are attached to premises which will make them licensed premises in terms of section 139(1) of the Act. The permitted hours for licensed premises are set out in section 53(1) and end at 11pm each night. Those entitled to object to the granting of an entertainment licence are listed in section 16(1).

[6] Section 64(1) permits the licence holder to apply for an occasional or regular extension of permitted hours and section 64(7) permits the persons listed in section 16(1) to object to such an application. Section 64(9) provides that where the Board has refused an application for regular extension it should not within one year of its refusal entertain a subsequent application for such an extension in respect of the same premises unless it makes a direction to the contrary at the time of the refusal. In the present case such a direction was not given and is part of the attack upon the decision.

[7] It is to be noted that there is no right of appeal in the statute against a refusal on the part of the respondent to grant a regular extension of an entertainment licence but as I have already stated judicial review is available to challenge such a decision so far as its legality is concerned, but not on the merits. In the foregoing circumstances the maximum limit of my power if I am in favour of the petitioners' position is to remit the matter back to the respondent to reconsider de novo.

[8] The petitioners' attack both at common law and under the Convention in relation to the fairness of the hearing was based on the way the hearing was conducted. I was provided with a transcript. Essentially what happened was that one objector, Mr Murdoch, appeared in person and made submissions to the Board about effectively noise and disturbance. The Board heard from both the police and an environmental official and then from a solicitor appearing for the petitioners. He sought to refute the assertions of fact made by Mr Murdoch and also made certain submissions not least in relation to the consequences to the petitioners of the extension being refused. In effect the submission was that the existence of the business depended upon having the regular extension without which it would close and indeed had done so except on very limited occasions where an occasional extension was granted since the regular extension request was refused.

[9] With regard to both the issue at common law and under Article 6 of the Convention the actual complaints of unfairness put forward by the petitioners was as follows.

[10] The two important passages in the JAE case against the background of the recognition that a licensing board is master of its own proceedings and not governed by a particular procedure are firstly where Lord Cullen states at page 1171:

At page 1172 his Lordship goes on:

[11] Counsel for the petitioners had to accept these general propositions but maintained in the present case that the granting of the right to lead evidence should have been allowed not only in relation to the CCTV issue but more generally to the petitioners' request. More fundamentally it was submitted that there was not equality of arms in as much that Mr Murdoch should properly be regarded as a witness and was not cross-examined. No opportunity to lead evidence from the petitioners was available. If, it was submitted, a comparison was made between assertions of fact by an objector in person and submissions by an agent the latter was disadvantaged as regards the force of his position. Reference was made to Hamid v City of Glasgow Licensing Board SLLP February 2001, p.8, and also to Laing v Motherwell District Licensing Board (1994) SLT 414 Senior counsel also sought to suggest that the petitioners were materially disadvantaged at the hearing by being separated physically in the hall from their client which made it difficult to take instructions on questions of fact.

[12] The response of counsel for the respondents in this respect was simple and clear. The Board being master of its own proceedings, it could proceed generally as it wished. It regularly heard submissions from objectors and from representatives at the same hearing. Expediency militated against hearing a proof on evidence in respect of assertions of fact in each case given the number of applications that the Board had to deal with at its statutory meetings. What mattered at the end of the day was whether both sides were given an opportunity to contradict assertions against them and fairly state their position. Perhaps the high water mark was Hamid but there there was a sharp issue of fact where the leading of evidence as to whether or not there had been an underage sale might have been material.

[13] In seeking to determine this aspect of the matter against the background of JAE supra, I am in no doubt that the petitioners' application in this respect must fail. They were represented by an extremely experienced solicitor who was given every opportunity to respond to the assertions of the objector Mr Murdoch and to questions from the Board. The essential ingredients to my mind of fairness are a general equality of arms as between the parties and the elimination of any notion of ambush when it comes to the emergence of material. The objections that were successful in this case had been maintained in writing in a number of letters and the respondents had ample notice to respond to them which they did so by the submissions of their solicitor. While there may be very limited cases in which the leading of evidence has happened and in this respect I was referred to an affidavit by the Clerk to the Board, I am entirely satisfied that in what could be described as a relatively routine application in respect of objections particularly from local residents, the hearing of evidence would be unnecessarily cumbersome and not essential to the concept of natural justice provided the applicant's position is properly stated, which plainly it was from a study of the transcript.

[14] For these reasons I am satisfied that the respondents have established if there was a onus upon them, which I doubt, there was no unfairness but in any event that the petitioners have failed to establish that there was any unfairness at the hearing in question with regard to their position.

The relevant provisions founded upon by the petitioners are as follows:

[15] Counsel for the petitioners submitted that following Tre Traktorer Akitebolag v Sweden (1989) 13 EHRR 309, the removal of a licence such as with which this case was concerned in the sense that the application had been refused, involved a civil right which brought Article 6 into play. On that basis it was submitted that a fair hearing would involve equality of arms between the parties (Dombo Beheer v Netherlands (1993) 18 EHRR 213) and furthermore require compliance with Article 6(3)(d). It was submitted that although that paragraph bore to apply only to criminal cases, they were applicable to disciplinary proceedings and generally as part of the equation in relation to quality of rights (Albert and Le Compte v Belgium (1982) 5 EHRR 533 and Van Mechelen and others v Netherlands (1997) 25 EHRR 647.

[16] The response of the respondents was similar to that in relation to the common law provision save it was submitted that the Board must not be regarded as a court or tribunal and therefore not subject to Article 6(3)(d) which in any event should not be extended beyond the concept of a court case properly regarded as such. The Dombo case did not set much in the way of a different test from a common law position and the same factors therefore applied in relation to the consideration of the issues raised by Article 6.

[17] For the purposes of the argument I am prepared to accept that Article 6 applies generally in the context of a hearing of this type ie a Licensing Board albeit it is administrative and it is not in my opinion correct to regard the Board as exercising the functions of a tribunal. Having said that however, I do not consider the test to be required under the Convention raises any different issues, certainly in this case, on the question of fairness and the equality of arms from those focused by the common law of Scotland. For precisely the same reasons that I already applied in relation to the common law test I do not consider any breach of Article 6 of the Convention has been established in respect of the way that the proceedings were handled.

Waiver of Right to Cross-Examine and Lead Evidence

[18] This issue is superseded by the fact that I have found the hearing to be fair in both respects and I shall deal with the matter shortly.

[19] I recognise that in certain circumstances a right in respect of the way in which a hearing or proceedings may be conducted can be waived, both at Scots Law, Clancy v Caird 2000 SLT 546 and Miller v Dickson 2000 SLT 1111 and under European Law in relation to H v Belgium (1987) 10 EHRR 337 and Zumtobel v Austria (1993) EHHR 116. In the present case the suggestion was made that no application was made by the solicitor either to cross-examine or lead evidence because he knew it would be refused. This therefore did not amount to a waiver of any rights he might have.

[20] In my opinion the answer to this proposition as stated by counsel for the respondents is that there being no right to lead evidence or cross-examine there is nothing that can be waived impliedly. If some particular procedure was thought appropriate an express demand thereanent should have been made. If such had been refused it might have borne on the question of fairness but not on any question, obviously, of waiver.

[21] In these circumstances whatever the reason, I do not consider that the failure on the part of the solicitor either to seek the right to cross-examine or to lead evidence amounts to a waiver of his position, if it be relevant at all. I take the matter no further and certainly do not wish to assert any general principle in this respect.

The Position Under Article 1 of Protocol 1

[22] This issue raises the most difficult aspect of this case. The relevant provisions of the Protocol are as follows.

[23] Under reference to Sporrong and Lonroth v Sweden (1982) 5 EHRR 35 which was concerned with building control permits and restrictions, counsel for the petitioners submitted that there were three aspects to this particular Protocol. In the first place a person was entitled to peaceful enjoyment of his possessions. Secondly there was a prohibition of deprivation of possessions but both of these were subject thirdly to the right of the State to exercise control in the public interest. What therefore eventually determined the question was the issue of proportionality to the extent that the control being exercised was or was not proportionate to the aim to be achieved. As senior counsel for the petitioners put it, the Protocol prohibited a sledgehammer being used by the State to crack a nut (Regina v Goldstein (1983) 1 WLR 151 per Lord Diplock at 155).

[24] In the present case it was submitted the possession was the premises, the peaceful use of them being denied by the absence of the necessary permission namely the licence, effectively without it putting them out business. This, it was submitted was disproportionate to the general aim to be achieved in the control and protection of the environment and the reference particularly to noise in relation to surrounding properties and their residents. There were less severe remedies available, namely a trial period of permission which could be monitored or at the very least the relaxation of section 64(9) to allow a relatively quick return to the Board by the applicant. Reliance was made generally on Tre Traktorer Aktiebolag, supra and to Chapman v United Kingdom ECHR Application No 27238/95 dated 18 January 2001, the former case being concerned with a licence and the latter being with a failure to obtain planning permission. In both cases a property right was recognised although in each case the application failed on the basis of proportionality.

[25] Counsel for the respondents adopted a much more radical approach. It was submitted that a licence particularly capable of enduring only for a short period and requiring renewal and capable of revocation or suspension, could never be a property right nor relevant to the issue of control of peaceful use of possessions as envisaged by the Protocol (Gudmundsson v Iceland (1996) 21 EHRR 89 (a decision of the Commission)). The position with regard to planning permission in Chapman supra differed by reason of the fact that it was permanent and ran with the land. This was further evidenced by Pine Valley Developments Limited &c v Ireland 1992 14 EHRR 319. Even if the licence itself was to be regarded as a right, the petitioners it was submitted have not been deprived of it since they had merely failed to achieve it. A right to apply was not the same as a right in the licence itself.

[26] In any event however, it was submitted by counsel for the respondents that on the issue of proportionality there could no doubt that given the extent of the objections and the aim of the legislation made in the balancing of the environment protection on the one hand with the business interests of the petitioners on the other, the refusal which would only last one year before there could be a reapplication could not in itself be regarded as remotely disproportionate to the general aim of the legislation.

[27] In seeking to resolve this matter, I confess to have some difficulty with the issue as to whether or not a property right is involved in this case in its particular circumstances. In principle, it is recognised that possession of a licence and a subsequent interference with it can be an invasion of a property right (Tre Traktorer supra) A fortiori a failure to obtain permission to occupy one's property in the manner desired can equally be an interference of the property right on the basis of both Chapman supra and Pine Valley supra. The difficulty in the present case is that senior counsel for the respondents submitted under reference to the Gudmundsson case that if the licence in question is of limited duration and capable of the relocation or removal it is not properly to be regarded as a right of property. In my opinion important point in Gudmundsson was that when the applicant started his employment as a taxi driver there was no licensing provision. Thus when it arrived it was an invasion of his existing right to be a taxi driver without control. The converse would appear to that failure to obtain a taxi licence at the start of the work proposal period what was necessary to achieve that aim would not be an interference of the property right, because of the nature of the licence being sought and in particular its limited character, but more importantly, in my opinion, it is not a right until at least a grant is made. A refusal of an application thus invokes no right. However the issue of control could still invade the right to enjoy peaceful use of possessions.

[28] As it will become apparent I do not have to decide this issue having regard to the view I take on proportionality but on balance I consider that the implications for the petitioners of the failure to obtain a permitted extension, namely effective closure of the business, does amount to control of their premises in the sense of interference of a property right, namely the use of the premises, under the Convention. Not, of course, one of which they are being deprived, but merely in a more general sense as an example of State control with the management of personal property akin to Chapman and Pine Valley. Senior counsel appeared to accept that if an extension is removed by revocation or suspension after being granted, that would be interference with the property right and on that basis I consider that to be a distinction without any meaning. It must follow that the failure to obtain the extension is equally interference with the property right with regard to the premises.

[29] Thus far therefore I am with the petitioners. I now turn to address the issue of proportionality.

[30] I can find very little assistance from the authorities as the tests to be applied in this respect although there is a useful passage from the speech of Lord Slynn in Alconbury supra, where his Lordship says:

[31] While his Lordship clearly maintains a distinction between so called Wednesbury unreasonableness and proportionality I consider that in real terms the notion of rationality applies to both, albeit with a wide margin of appreciation in favour of the national legislation or court. The concept of rational disproportionality is difficult to understand and thus one is left with the impression that the test to be applied is simply one of common-sense, in the sense that for the act or decision taken to be disproportionate to the aim to be achieved it must be regarded as irrational in the sense of not being based on rational grounds. On the other hand if the test is simply weighing the act complained of with the aim of it to be achieved on the basis of the "sledgehammer - nut" approach, the issue is a balancing exercise.

[32] In my opinion in this case the refusal in question of the application for a permitted extension cannot be regarded as disproportionate to the aim to be achieved, namely, in terms of the statute and again namely effectively the protection of the environment. Evidence was available to justify the view of the respondents which was thus rationally based. Nor do I consider that the refusal becomes disproportionate because no opportunity was given for a trial period or a direction made under 64(9). The former was not requested and the refusal of the latter in my opinion is not disproportionate to the fact that an application can be made in any event after a year has elapsed. A useful example is found in the Tre Traktorer case where the overriding consideration was the requirement or obligation of the State to control liquor sales which meant despite the economic consequences to the business the removal of the licence because of the way their business was being handled was not considered to be disproportionate.

[33] In these circumstances it is my opinion that this case does not disclose a violation of Article 1 of the Protocol in respect of any property rights of the petitioners.

[34] For these reasons I shall sustain the second and third pleas-in-law for the respondents and dismiss the petition.