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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 188
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P1907/07
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OPINION OF LORD GLENNIE
in the petition of
DEEJAYS NIGHTCLUB
and
DENNIS F FORSYTH
JNR
Petitioners:
For
Judicial Review of
a Decision of Aberdeen Licensing
Board
ญญญญญญญญญญญญญญญญญ________________
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Petitioners: McKenzie; A & W M Urquhart
Respondents: Brown;
Biggart Baillie LLP
23 November
2007
Introduction
[1] On
14 November last I heard parties on the first hearing in a petition for
judicial review of a decision made by Aberdeenshire Licensing Board, Northern
Licensing Division ("the board") made on 27 June 2007 in respect of an application for regular
extension of permitted hours made under section 64 of the Licensing (Scotland)
Act 1976 as amended. By that
application, the petitioners had sought inter
alia a regular extension of permitted hours from 11pm on Fridays until 3am
on Saturday mornings, and from 11pm
on Saturdays until 3pm on Sunday
mornings. The application was objected
to by the Chief Constable. Following submissions,
the board granted extensions only until 2am
on Saturdays and Sundays, rather 3am
as the petitioners had sought. In the
Petition the petitioners seek reduction of that decision and its
reconsideration.
[2] I
was told by Mr McKenzie, who appeared for the petitioners, that the board were
due to meet at the end of November and that it was hoped, if my decision was in
the petitioners' favour, that the board could reconsider the application at
that meeting. For that reason, I gave my
decision at the end of the hearing and pronounced an interlocutor reducing the
decision of the board and remitting the matter to them for their
consideration. I explained briefly my
reasons for so doing. At the request of
the parties I now set out those reasons more fully.
The statutory framework
[3] The statutory framework
within which the application fell to be considered is contained in
section 64 of the Licensing (Scotland) Act 1976 and section 47 of the
Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Section 64 of the 1976 Act provides, so
far as material, as follows:
"(3) After considering the application and any
objections made thereto, a licensing board may grant an application for the
regular extension of permitted hours if, having regard to the social
circumstances of the locality in which the premises in respect of which the
application is made are situated or to activities taking place in that
locality, the board considers it is desirable to do so, ....
....
(8) A licensing board shall not grant an extension
of permitted hours under this section if it considers that the extension is
likely to cause undue public nuisance or to be a threat to public order or
safety."
Section 47 of the 1990 Act puts a
further constraint upon the power of the board to grant an application under
section 64. It provides as follows:
"(1) A licensing board shall not grant an
application under section 64 of the principal Act for an extension of
permitted hours unless it is satisfied by the applicant, taking account of the
factors mentioned in sub-section (3) of that section -
(a) that there is a need in the locality in
which the premises in respect of which the application is made are situated for
a regular extension of the permitted hours;
and
(b) that such an extension is likely to be
of such benefit to the community as a whole as to outweigh any detriment to
that locality."
Mr Brown, who appeared for the
board, emphasised that a burden is upon the applicant to establish that the
conditions set out in paragraphs (a) and (b) are satisfied; though he accepted,
correctly in my view, that, so far as concerns paragraph (b), it must be for
the objector to show that there is a detriment to the locality requiring to be
outweighed by the benefit to the community, and what that detriment is. The balancing exercise contemplated by
paragraph (b) cannot properly be carried out unless the detriment is
identified.
Objections
[4] The application was opposed by
the Chief Constable, Grampian Police, North Aberdeenshire Division. His letter of objection dated 15 June 2007 was before the board
when it considered the application. It
had attached to it two documents. One,
described as a "vandalism offences report" carried out by the Intelligence Analyst
of Grampian Police, reviewed incidents of vandalism which had occurred in
Fraserburgh between 1 June 2006
and 31 May 2007. The other was a copy of a letter from the
Grampian Police sent sometime previously to the petitioners complaining about
certain incidents. These documents were
before the board when it considered the application. In the Petition, a point is taken that
Mr Walker, who appeared for the petitioners before the board, was unaware
that the vandalism offences report was before the board and was therefore deprived
of the opportunity of making detailed submissions in respect of its
findings. This point was not pressed by
Mr McKenzie, who appeared for the petitioners at the hearing before
me. He accepted, for the reasons shown
clearly in the Answers to the Petition, that, if Mr Walker did not see
that document, it was through no fault of the board. He ought to have been aware of it. He in fact made submissions to the board
based upon what he understood it to say; and, although it was unfortunate that
he did not have a copy before him, I do not think that anything ultimately
turns on this point. Mr Brown did
not contend that the petitioners were debarred from making detailed reference
to the vandalism offences report when criticising the reasoning of the
Licensing Board.
[5] In
its Statement of Reasons, the board summarised the application and the
objections. They then set out very fully
the submissions made on behalf of the applicant by Mr Walker and on behalf of
the Chief Constable by Chief Inspector Walker.
The submissions made by the Chief Inspector referred to a number of incidents
reported at or outside the premises in the year up to May 2007, as detailed in
the letter of objection, and also to the instances of vandalism analysed in the
vandalism offences report. On the basis
of the latter, the letter of objection made the following point: that during the stated period (ie. the year
up to 31 May 2007) there had been 161 reported vandalism offences; that the most common time of discovery of
those offences was between 6am and 8.59am on Saturday morning, indicating that
those offences had been committed overnight;
and that the majority of offences were committed at a distance of between
100 and 400 metres from the premises. On
this issue, the letter of objection concluded with the following statement:
"Whilst it is
not possible to directly attribute all of these offences to patrons leaving the
premises the above details would tend to indicate that this is at least a
possibility if not a probability."
The Chief Inspector's submission on
this point is recorded by the board at paragraph 7.2.13 of their Statement
of Reasons. They record the Chief
Inspector as submitting that the number, timing and location of the incidents
"was indicative
of the probability that the incidents had been committed by patrons leaving the
premises."
This interpretation was disputed by
Mr Walker for the applicants, who made a number of points about the lack
of information as to where the incidents had been committed or when or by whom,
and concluded that there was no evidence which could link the 161 offences to the applicants.
The board's decision
[6] The board's consideration
of the whole matter is set out at paragraph 11 of the Statement of
Reasons. Having summarised the relevant
statutory provisions, they first considered the question of "need" referred to
in section 47(1)(a) of the 1990 Act.
In respect of the period under consideration in this Petition, the board
accepted that "need" was established, ie. that there was a need in the locality
for a regular extension of the permitted hours.
[7] The
board then turned to the question of benefit to the community and detriment to
the locality as referred to in section 47(1)(b) of the 1990 Act. In paragraph 11.10 they explained that they
did not carry out a detailed incident-by-incident analysis but followed the dictum of Lord Dunpark in McKay v Banff & Buchan Western
Division Licensing Board 1991 SLT 20.
In that case Lord Dunpark noted that counsel for the appellants had
sought to go through the incidents seriatim,
in effect explaining that the licensing staff had co-operated fully to prevent
them occurring. He then made this
comment:
"It is not
appropriate in a case such as this to examine each incident in detail. It is the cumulative effect that counts, and
the overall effect of the number and type of incidents, which were not
disputed, entitled the board to find those grounds of complaint proved."
They then turned to consider the
evidence and set out their conclusions.
They dealt with the vandalism offences report at paragraph 11.13 in this
way:
"The Analysis
attached to the letter of objection gave rise to a substantial inference that
the incidents of vandalism were linked to the operation of the premises,
resulting in detriment to the community."
As regards to the itemised
incidents set out in the letter of objection itself, their conclusion (at
paragraph 11.14) was as follows:
"Further, the
nature and cumulative effect of the numbered incident reports detailed in the
letter of objection, gave rise to the clear inference that there was detriment
to the locality."
They added in the next paragraph
that the applicants had not sought to deny that the incidents had occurred at
or in the vicinity of the premises, but had offered explanations as to why they
had occurred. I take this to be a
comment intended to pick up upon the remarks of Lord Dunpark to which I
have referred. Finally, at
paragraph 11.16, they made comments critical of the licensee and his
failure to take action until the point had been pressed home to him by the
police after previous incidents. They
commented that he did not fully seem to comprehend his responsibilities as a
licence holder in the running of the premises and that he expected the police
to police the vicinity of the premises.
They said that this was not acceptable.
They considered that his reaction to the incidents listed over the last
12 months was a token gesture only, "too little, too late". They then concluded in paragraph 11.17
that there was sufficient material produced to establish detriment to the
community as a whole. In the next
paragraph they sought to weigh the evidence of benefit to the community, which
they appeared to have thought was relatively minor, against the detriment to
the locality; and concluded that the
detriment to the locality outweighed any benefit to the community as a whole
that would result from granting the hours as applied for. As a result, they were precluded by the terms
of section 47(1)(b) from granting the application in the form in which it was
made. They did not need, therefore, to
consider the question of public order and safety in terms of section 64(8)
of the 1976 Act.
[8] However,
the board did not stop there. I have
emphasised their conclusion that the detriment to the locality outweighed any
benefit to the community as a whole that would result from granting the hours as
applied for. The board went on in
paragraph 11.20 to consider the question of "full or partial refusal?". I shall set out the terms of that paragraph
in full:
"The Board was
not, in all the circumstances, persuaded, that the detriment to the community
justified a complete refusal of the hours sought by the applicant. The incident reports in the letter of
objection revealed a significant grouping of disturbances involving crowds
outside the premises round about, or after, 3:00am. None of these seemed to occur at or before 2:00am.
The Board considered that restricting the hours sought on
Friday/Saturday into Saturday/Sunday from 3:00am
to 2:00am was appropriate in the
circumstances."
In other words, having found that
detriment outweighed the benefit in terms of the application to extend the
hours until 3am, they found that
benefit outweighed detriment in respect of extending the hours to 2am. They
must have gone on, although they do not say so, to have considered it
"desirable" in terms of section 64(3) of the 1976 Act to grant an extension
until 2am on those mornings. The decision to grant the extension until 2am
is not challenged in these proceedings - the only challenge is in respect of
their failure to grant an extension for the extra hour to 3am - and I must
proceed upon the assumption that in respect of the extension which they did
grant the board acted lawfully, ie. correctly found that there was a need in
the locality for such an extension, correctly found that the benefit of such an
extension to the community as a whole outweighed any detriment to that locality
and correctly considered that it was desirable that the extension be
granted.
Submissions
[9] On behalf of the
petitioners, Mr McKenzie took me in some detail both to the vandalism
offences report and to the specific incidents detailed in the letter of
objection. On the basis of his analysis
of those documents, which were the only evidence before the board on the
relevant matters, he submitted that the board's conclusions in paragraphs 11.13
and 11.14 were flawed in that no reasonable licensing board, properly applying
itself to the law, could properly have reached those conclusions on the evidence
before it. He went on to criticise the
conclusion in paragraph 11.20 in which the board differentiated, for the
purpose of weighing up the relative benefit and detriment, between the period
up until 2am on the relevant mornings
and the period between 2am and 3am. This
differentiation, he submitted, could not be justified on the evidence. He referred me, as illustrative of the
approach that the Court should take where a licensing board went further than
the statistical evidence warranted, to the decision of Lord Johnston in Clark v North Ayrshire Licensing Board
(unreported 1995) at page 7. So far
as concerned paragraph 11.16, under reference to CRS Leisure Ltd v Dumbarton
District Licensing Board 1990 SLT 200 at 203G-I Mr McKenzie submitted
that in considering the question of an extension of permitted hours under
section 64, the board was not entitled to have regard to the fitness of
the licence holder. That was a matter
which arose only in the context of revocation or renewal of a licence. Insofar as the board had taken these matters
into account, it had erred in law.
[10] For the board, Mr Brown referred me to the relevant
legislation. In terms of section 64(3)
of the 1976 Act, he emphasised that the Board had to consider whether an
extension was "desirable". He said that
this was a broad discretionary judgement.
However, in the course of
discussion, he accepted that the board had not in fact reached this point. Their conclusion that detriment outweighed
benefit in respect of the extra hour meant that they did not have to consider
the question of whether an extension during that period was desirable. The assessment that detriment outweighed
benefit was an assessment of fact, albeit it involved the board exercising its
judgement. Mr Brown accepted that
the question in that respect was whether a reasonable board, applying itself to
the law, could properly have come to the conclusion to which it came on the
evidence before it.
[11] Mr Brown referred me to certain case law under three
headings. The first concerned the nature
of the grant of a regular extension of licensing hours, and in this context he
referred me to Elder v Ross & Cromarty District Licensing Board
1990 SLT 307 at 312-313, and to Bass
Taverns Limited v Clydebank District
Licensing Board 1995 SLT 1275. These
cases, to my mind, emphasised the board's discretion when it came to an
assessment of the question of "desirability" but did not touch upon the issue
before me. The second group of cases
concerned the correct approach for the board to take in the exercise of its
licensing judgement. Under reference to Sangha v Bute & Cowal Divisional Licensing Board 1990 SCLR 409 and McKay v Banff & Buchan Western Division Licensing Board (to which I
have already referred), he emphasised that the matter was one of discretion
pre-eminently for the board and involved a broad value judgement. In this same context he referred to Lidster v Owen [1983] 1 WLR 516 at 524.
Under his third heading he referred me to Noble v City of Glasgow
District Council 1995 SLT 1315 in which an Extra Division had emphasised
that in giving reasons it was not necessary for the licensing authority to
write something resembling judicial judgment or to canvass each piece of
evidence and each argument. In other
words, their reasons should be read sensibly and without undue semantic or
technical analysis. I do not dissent
from any of these propositions.
[12] Mr Brown strenuously argued that the board were entitled
to have regard to the information contained in the vandalism offences report. In response, though not in answer, to a
question from the bench as to what that report showed which was of any
relevance to the petitioners' application, he submitted, as I understood it,
that the board was entitled to look at it as part of the whole of the evidence,
to treat the evidence "in the round", to look at it along with all the other
evidence regardless of whether it of itself added anything of importance. Under reference again to Lord Dunpark's dictum in McKay he submitted that it was not appropriate for the board, and
therefore not appropriate for the Court, to consider evidence of this sort in
detail. The evidence in the vandalism
offences report might have confirmed to the board that incidents of vandalism
occur when licensed premises are open, and soon after they close, and that the
longer such premises remain open the more vandalism is likely to occur. They might not have said this in their
Statement of Reasons, but it was not incumbent upon them to set out every detail
of their thinking. He did not make any
detailed submissions about the individual incidents identified in the letter of
objection but said that it was open to the board on that material to conclude
that there was a difference between the detriment if the applicants' premises
closed at 2am and the detriment if they closed at 3am.
Discussion
[13] It is apparent from the
above that the board was influenced in their approach by the remarks of Lord
Dunpark in McKay, and Mr Brown
placed great emphasis on these remarks.
It seems to me that there is a danger in taking these remarks out of
context with the result that they may be misunderstood. The issue with which Lord Dunpark was
concerned was this. Though the incidents
were admitted, and though there was clearly a causal link between the incidents
and the times when the premises were open, it was argued by reference to the
details of each individual incident that the staff and licensee were
co-operative and that the staffing was adequate. This was to rebut that the
licence holder continually failed to prohibit underage drinking and the many
incidents of assaults and breaches of the peace and general disorder. The question at issue was whether the licensing
board was entitled to suspend a hotel licence for three months on those
grounds. What Lord Dunpark was concerned
to point out was that there comes a time where it becomes futile to point out
that any one particular incident occurred despite the best endeavours of the
licensees. The accumulation of incidents
may itself be enough. As Lord Dunpark
put it: "It is the cumulative effect
that counts, and the overall effect of the number and type of incidents....
entitled the board to find both grounds of complaint proved." That is quite a different situation from the
present case. Here the issue, thrown
into stark relief by the vandalism offences report, is whether the material put
before the board does show any causative link between the premises being open
and the incidents of vandalism reported.
By causative link I do not mean necessarily that the applicants are to
be considered at fault. It may be, as
was the case in Lidster, that the
vandalism occurs simply because at certain times a large number of people,
possibly the worse for wear, are leaving the premises. The question at issue here is not whether, if
such causative link is shown, the applicants can show in respect of individual
cases that they were not at fault.
Rather, it is whether the material put before the board demonstrates any
causative link. In considering that
aspect, which is central to the question of detriment, it must be open for the
applicants to challenge the evidence in detail.
I do not understand Lord Dunpark's remarks to suggest otherwise.
[14] It is plain from looking at the vandalism offences report that
it provides no evidence of any causative link between vandalism and the
applicants' premises. The report states
that during a period of one year from 1 June 2006 to 31 May 2007 there had been
161 reported vandalism offences "in proximity to" the applicants'
nightclub. This is shown graphically by
the superimposition of a series of rings on a town plan of the area, with the
applicants' premises at the centre. The locations
of the incidents are marked and are mainly within the shaded area next out from
the bulls eye. The top segment of the
town plan covered by these circles is made up of sea and industrial and
commercial estates. Unsurprisingly the
vandalism incidents are marked mainly in the lower part. I am told, however, and it was not disputed
before me, that almost all the licensed premises in Fraserburgh are within the
same area. Accordingly, that
geographical spread shows nothing of any relevance. Separately, the report contains a presentation on a day by day basis of the
vandalism incidents that were reported between 6pm
and 9am Monday to Sunday throughout
that one year period. This covers 107 of
the 161 reported vandalism offences. It
shows, as one might expect, an increase in the number of offences on Friday/Saturday
and Saturday/Sunday. But the times when
the incidents are reported gives no indication of when the offences were
committed and there is nothing in the figures which shows any linkage between
vandalism offences and the times when the applicants' premises were open.
[15] It is important to have in mind that the board considered that
an extension of the opening hours until 2am
was desirable. They found that up until
then the benefit outweighed the detriment.
For the figures on the vandalism offences report to show anything of
relevance, even if they could attribute vandalism to the fact of the premises
being opened, which they do not, they would have to show some particular
linkage between vandalism and the additional one hour's opening, ie, the period
between 2am and 3am. Otherwise, how
could the benefit/detriment scales tip during that extra hour. No case was made out or even suggested along
these lines.
[16] It follows, in my opinion, that in accepting the submissions
put forward on behalf of the Chief Constable and concluding in paragraph 11.13
that the analysis in the vandalism offences report gave rise to "a substantial
inference that the incidents of vandalism were linked to the operation of the
premises", the board reached a conclusion which went far beyond anything that
the evidence before them could legitimately support. But even then they asked themselves the wrong
question, since having found that the detriment during the period up until 2am did not outweigh the benefit, they should
have been looking to see whether the detriment between 2 and 3am was to some degree greater. They did not even address this. Nor did that adminicle of evidence.
[17] Turning to the question of the specific incidents set out in
the objection letter, the board find in paragraph 11.14 that the "nature and
cumulative effect of the numbered incident reports detailed in the letter of
objection gave rise to the clear inference that there was detriment to the
locality". That was a conclusion which
was open to them on the material before them.
Indeed it is perhaps self evident, since the incidents, involving
individual or group disorderly conduct fall inevitably to be regarded as a
detriment to the locality. But this does
not go very far, since at paragraph 11.20 the board impliedly concluded that
the detriment occasioned by the premises being open until 2am was outweighed by
the benefit to the community of the premises staying open. Accordingly, the bare finding in paragraph
11.14, albeit a finding to which the board was entitled to come, does not
address the particular question of why, if that detriment was acceptable if the
premises were open until 2am, it was not
acceptable if they were to remain open until 3am. This is the matter which is addressed in
paragraph 11.20. The board find
that the incident reports in the letter of objection showed "a significant
grouping of disturbances involving crowds outside the premises round about, or
after, 3am", but that there were no
such incidents at or before 2am. Having regard to the terms of the letter of
objection, it seems that there were, in fact, only three reports of
disturbances involving crowds outside the premises within the hour or so after 3am.
Whether this can be called a "significant grouping of disturbances" is a
matter for the judgment of the board. It
is not right to say that there were no such incidents before 2am:
incident 15 of the incidents set out in the letter of objection
occurred at 1.55am. Quite apart from that, there were incidents
which the board has not referred to occurring between 2am and 3am. By the process of reasoning which appears to
be accepted, those could be regarded as referable to a closing time of 2am rather than one of 3am.
[18] It is not the function of the court to substitute its own view
for that of the board. It is, so it
seems to me, quite possible that the board could, on the evidence before, it
have come to the view that there was some significance in terms of detriment to
the neighbourhood of a closing time of 2am
as opposed to 3am. I am not satisfied, however, that they have
in fact approached the matter in that way.
Of more importance, I am concerned that their consideration of the issue
of detriment has been coloured or affected in a manner adverse to the applicants
by their finding, which I have held to be unjustified, that some or all of the
incidents of vandalism reported in the vandalism offences report were linked to
the operation of the premises. For this
reason, I am satisfied that the error of law shown by the finding in paragraph
11.13 requires me to reduce the decision and remit the matter to them for their
reconsideration. If I had been satisfied
that they would have come to the same decision even without the finding in
paragraph 11.13, I would not have taken this course - but I am not so
satisfied.
[19] Finally, I should deal with the complaint that the board's
finding in paragraph 11.16 itself discloses an error of law for the
reasons set out by Mr McKenzie under reference to CRS Leisure. Mr Brown argued
that what the board were doing in that paragraph was setting out reasons why
they were not persuaded that the licensee was sufficiently in control of the
premises, and behaviour at and around the premises, as to give any confidence that
incidents of the type set out in the letter of objection would not be
repeated. I think Mr Brown is right
in this. The board were entitled, when
looking at the particular incidents, to have regard to the probability of such
incidents being repeated in the future.
It seems to me that their discussion at paragraph 11.16 goes no further
than this.
[20] As I have said, I pronounced an interlocutor on the day of the
hearing and indicated that I would give fuller reasons as soon as
possible. On Monday 19 November, when this
Opinion was ready to be issued, agents for the board properly brought to the
attention of the court and of the petitioners a difficulty which, as they saw
it, might lie in the way of the board reconsidering the matter at their meeting
at the end of November. The next
scheduled meeting not until January 2008.
I agreed to allow the petitioners the opportunity of applying by motion
for an order that the board reconsider the application at that November
meeting, thereby providing a means of having this question resolved; and held
off issuing this Opinion meanwhile. The
petitioners duly intimated a motion on the Wednesday, which motion was to be
heard on the Friday. On the Thursday
afternoon, however, the petitioners informed the court that their motion was to
be dropped. Accordingly there is no need
in this Opinion to consider the question of whether the board could or should
reconsider the application at their meeting at the end of November. Nor is there any need to alter or supplement
the interlocutor which has already been pronounced.
