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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Tote Bookmakers Ltd v. Dundee Cuty Licensing Board & Anor [2006] ScotSC 12 (21 February 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/12.html
Cite as: [2006] ScotSC 12
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SHERIFFDOM OF TAYSIDE CENTRAL AND
JUDGMENT OF SHERIFF R.A. DAVIDSON
In causa
TOTE BOOKM AKERS LIMITED
Against
And
LADBROKES LIMITED.
B228/05 Tote Bookmakers Limited v Dundee City Licensing Board & Others.
Act: Blair, Advocate
Alt: Woodcock for first defenders; Mrs. Wolfe, Advocate, for third defenders
No appearance for second defenders.
NOTE
Statutory
provisions referred to:
1. The Betting, Gaming and Lotteries Act, 1963, as amended, esp. Section 9 and para. 19 of Schedule I
2.
Licensing (
Authorities
referred to:
1. Barrs v British Wool Marketing Board 1957 SC 72
2. Bradford v McLeod 1986 SLT 244
3. Feld v London Borough of Barnet [2004] EWCA Civ 1307
4. Lawal v Northern Spirit Limited [2003] UKHL 35
5. Piper v Kyle and Carrick District Council 1991 SLT 559
6. Porter v Magill [2002] AC 357
7. Ranaldi v City of Edinburgh District Council 2000 SCLR 368
8. Tennent Caledonian Breweries Limited v City of Aberdeen District Licensing Board 1987 SLT (Sh.Ct.) 2
9.
William Hill (
Betting, Gaming and Lotteries Act 1963, as amended.
S.9 (1) " Where in the case of any premises there is for the time being in force a licence authorising the holder of the licence to use those premises as a betting office (in this Act referred to as a 'betting office licence'), section 1(1) of this Act shall not apply to the use of those premises for the effecting of betting transactions withor through the holder of the licence or any servant or agent of his......"
(2) The following persons, and the following persons only, may apply for the grant or renewal of a betting office licence in respect of any premises, that is to say-
(a) a person who is for the time being the holder of, or an applicant for, a bookmaker's permit.......
(3)...........
(3) Subject to subsections (2) and (3) of this section, Schedule 1 to this Act shall have effect for the purposes of betting office licences and betting agency permits.
Schedule 1, Para 19.
In the case of an application for the grant or renewal of a betting office licence in respect of any premises, the appropriate authority-
(a) shall refuse the application if they are not satisfied-
(i) in the case of an applicant other than the Totalisator Board, that on the date with effect from which the licence would come into force, or, as the case may be, would be continued in force, the applicant will be the holder either of a bookmaker's permit or of a betting agency permit; and
(ii) that the premises are or will be enclosed;
(iii) that there are or will be means of access between the premises and a street otherwise than through other premises used for the effecting with persons resorting to those premises of transactions other than betting transactions;
(b) may refuse the application on the ground-
(i) that, having regard to the lay-out, character, condition or location of the premises they are not suitable for use as a licensed betting office or
(ii) that the grant [if the application is for that, and the applicant is not the Totalisator Board nor applying for the grant of a licence by way of transfer of one that is in force for the same premises at the time of the application] would be inexpedient having regard to the demand for the time being in the locality for the facilities afforded by licensed betting offices and to the number of such offices for the time being available to meet that demand; or
(iii) that the premises have not been properly conducted under the licence."
Licensing (Scotland) Act 1976, as amended,
S. 18 (1) "A licensing board shall within 21 days of being required to do so under
subsection (2) below give reasons for arriving at any decisions mentioned
in section 5(2) of this Act....................
S. 39 (1) An appeal which may be made by virtue of any provision of this Act
against any decision of a licensing board shall be to the sheriff, and the
decision of the sheriff on any such appeal may include such order as to the
expenses of the appeal as he thinks proper.
(2) ...........................
(3) ..............................
(4) The sheriff may uphold an appeal under this section only if he considers the licensing board in arriving at its decision-
(a) erred in law;
(b) based its decision on any incorrect material fact;
(c) acted contrary to natural justice; or
(d) exercised its discretion in an unreasonable manner.
(5) ...........................................
(6) On upholding the appeal under this section the sheriff may
(a) remit the case with the reason for his decision to the licensing board for reconsideration of its decision; or
(b) reverse or modify the decision of the licensing board
S.133(1) The authority responsible for the grant or renewal of bookmaker's permits,
betting agency permits and betting office licences in Scotland under the
Betting, Gaming and Lotteries Act, 1963 shall be the licensing board for
the area concerned, and accordingly for sub-paragraph (b) of paragraph (1)
of Schedule 1 to that Act there shall be substituted the following sub-
paragraph -
" in any area in Scotland, the licensing board for that area constituted
under Section 1 of the Licensing (Scotland) Act 1976."
(2)...........................
(3)............................
(4) Subsection (4) to (8) of section 39 of this Act shall apply in relation to
appeals under paragraph 24 of Schedule 1 to the Betting, Gaming and
Lotteries Act 1963, ........as they apply in relation to appeals under any
provision of this Act......"
This is a summary application at the instance of a limited company principally engaged in the operation of bookmakers' premises who had lodged an application with the first respondents for the grant of a betting office licence for premises at 42/44 Reform Street, Dundee. Such an application may be made in terms of Section 9, as amended, of the Betting, Gaming and Lotteries Act, 1963 ("the 1963 Act") in respect of any premises. Schedule One of the 1963 Act, as amended, regulates the manner in which such an application is to be presented and considered. Para 1 makes it clear that in Scotland the authority who are to consider such an application are "the licensing board for that area constituted under section 1 of the Licensing (Scotland) Act, 1976." In short, the same authority for a local government area responsible for liquor licensing is also to deal with applications under the 1963 Act. These are to be considered at quarterly meetings in the same way as liquor licensing applications. The Schedule sets out a timetable for the lodging and advertising of an application, and arrangements for intimation to the police and for dealing with objections. The arrangements for consideration of the application by the licensing authority are also set out from Para.11 onwards. Para. 19 sets out grounds for refusal of an application for a betting office licence, whether first grant or renewal. The bases set out in Para. 19(a) are mandatory. Those contained in 19(b) are discretionary. The discretionary provision, so far as relevant to the present case, reads:-
" In the case of an application for the grant or renewal of a betting office licence in respect of any premises, the appropriate authority -
(b) may refuse the application on the ground-
(i) that, having regard to the lay-out, character, condition or location of the premises, they are not suitable for use as a licensed betting office."
Para. 24 of Schedule 1 permits an appeal to the sheriff having jurisdiction in the authority's area against the refusal to grant an application. The procedure in relation to such an appeal is regulated by Paragraph 3.2 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules, 1999), (SI 1999/929) as amended. Inter alia, these provisions require a clerk to a licensing board to send a written statement, within seven days of service of the summary application, of the reasons for the decision to the sheriff clerk and to the parties to the application. Then, tucked away in Section 133(4) of the Licensing (Scotland) Act, 1976, as amended, ("the 1976 Act") there is a provision which sets out that subsections (4) to (8) of Section 39 of the 1976 Act shall apply in relation to appeals under para. 24 of Schedule 1 to the 1963 Act "as they apply in relation to appeals under any provision of this Act and in his decision on any such appeal.....the sheriff may include such order as to the expenses of the appeal as he thinks proper."
Section 39 of the 1976 Act regulates generally appeals to the sheriff from decisions of licensing boards in relation to liquor licensing applications. Subsection (4) which is applied to decisions in relation to licensed betting offices sets out the restricted bases upon which a sheriff may conclude that an appeal should be upheld and are the familiar provisions that a licensing board in arriving at its decision "(a) erred in law; (b) based its decision on any incorrect material fact (c) acted contrary to natural justice; or (d) exercised its discretion in an unreasonable manner." Paras. (5) to (8) direct a sheriff as to the conduct of the application and as to what steps may be taken if an appeal is upheld, as well as setting forth a limited right of appeal to the Court of Session.
In this case the application was considered and refused by the first defenders at their meeting on 16th. June, 2005, by five votes to four. Following the lodgment of this application a letter was written by the first defender's clerk, dated 5th. July, 2005, in which it is made clear that the reason for refusal relates to the location of the premises. In support of that position it is said in the letter that, " Reform Street is one of the city's most established and important thoroughfares running from the City Square to Albert Square. It is also, as was recognised on behalf of the applicants, an area of architectural merit. Although there are already a number of licensed premises, i.e. the two public houses, the off-licence shop and the amusement centres, it remains predominantly retail and financial in character. The Board recognised that the grant of licences for these other premises over the years had somewhat altered the balance. However, they did not accept that there should be a further dilution of this character by granting the application. The Board accepted that the premises have been empty since the previous application and that there are considerably fewer objectors on this occasion. However, it is not the number of objections which matters, but their content and quality. Equally, because premises have been empty for some time does not mean that the Board must grant an application where they consider such premises to be unsuitable. The Board acknowledged the applicant's intentions with regard to the proposed appearance and internal fitting out of the premises. However, as observed by Mr. Sobolewski (agent for Ladbrokes Limited, the third defenders, who had objected to the application) at the end of the day the premises would still be a betting office. For these reasons it decided to refuse the application."
It seems reasonable to infer from that letter that the majority of the Board were disinclined to consider the location of any licensed betting office in Reform Street as to do so would further dilute the retail and financial character of the street. At any rate they refused to permit this one, without giving any reason that was specific to the application.
The summary application to this court utilised all four grounds of appeal contained in
Section 39(4) of the 1976 Act but when it came to the hearing before me, counsel for the pursuers, for reasons not disclosed, informed me that he was confining himself to the arguments set out in Art. 6 of Condescendence and that his pleas-in-law, with the exception of No. 4, could be repelled as he was not insisting on them. I have accordingly done so.
His remaining ground of appeal accordingly was that the first defenders had acted contrary to natural justice. It was averred, and admitted by the first defenders, that one of the members of the board, namely The Lord Provost, had said, in moving to support the refusal of the application, "As long as I am here we will not have a licensed betting office in Reform Street."
It was plain, said counsel, from the terms of that letter that the reason for the determination was the locality of the proposed betting office. There had been some discussion about the location of other premises in the city centre but there was nothing in the "reasons" letter to indicate that over provision played any part in the decision of the Board.
Counsel first directed me to the judgment in the case of Barrs v British Wool Marketing Board 1957 SC 72. This was an action for reduction of a determination made by a quasi-judicial body set up to establish valuations of wool produced by sheep farmers in the post second world war days when all wool had to be sold through the agency of the defenders. The pursuer, who was a sheep farmer from Mull, was aggrieved at the assessor's valuation of his wool and appealed to a valuation appeal tribunal set up in terms of the marketing scheme. Having heard submissions from the pursuer and his merchants on the one hand and from the assessor on the other the members of the tribunal retired to consider their decision. It appears that the two assessors who had made the original decision were present while these deliberations took place. The decision further reduced the value of the pursuer's wool. It was argued that there had been a contravention of natural justice in these circumstances.
At page 82 of the judgment, Lord President Cooper, having considered the nature of the particular tribunal in this particular case, and having expressed the general principle as set out in the judgment of Lord Jeffrey in the case of an arbiter in Mitchell v Cable (1848) 10D 1297, namely that an arbiter must do his duty fairly, that is equally, with both parties, went on to observe the width of the principle, thus:-
" It is not a question whether the tribunal has arrived at a fair result; for in most cases that would involve an examination into the merits of the case, upon which the tribunal is final. The question is whether the tribunal has dealt fairly and equally with the parties before it in arriving at that result. The test is not ' Has an unjust result been reached ?' but 'Was there an opportunity afforded for injustice to be done ?' If there was such an opportunity, the decision cannot stand. Hence, if one party is allowed to give evidence, and this is denied to another, the decision would be reduced, not because the evidence led had convinced the tribunal, for this could hardly ever be established, but because the standards of fair play which underlie all such proceedings had not been satisfied. Similarly, in the present case, the real test for the validity of the decision of the tribunal is not 'Did the appraisers put forward arguments to the tribunal outwith the presence of the pursuer's representatives ?' The real test is 'Did the tribunal create a situation in which they gave an opportunity to the appraisers to put forward arguments without giving an equal opportunity to the pursuer's representatives ?' Judged by that standard, there can only be one answer. The tribunal did so, and the decision therefore cannot stand. For the conduct of the proceedings was at variance with the principles of natural justice, and the presence of the appraisers at the deliberations of the tribunal in the absence of any representative of the pursuer is fatal to the validity of the decision."
Counsel submitted that the principle which I should derive from the foregoing was that where there was such an appearance of impropriety that a fair-minded informed by-stander would consider that there was a real possibility of bias, then the decision would be a nullity. That seems to me to be another way of saying that justice requires to be seen to be done, which is really what the Lord President was emphasising.
In the present case, said counsel, the case turned on whether in the circumstances the court now reviewing what had occurred could have confidence in the Lord Provost's participation in the deliberation process standing his public utterance and whether therefore the decision making process by the Board, featuring him, had the appearance of fairness. It could not have that appearance so long as there was an opportunity for injustice. There was no need to establish that injustice had in fact occurred.
For a further statement of the test to be applied to determine whether there was an incidence of bias or at least apparent bias, counsel directed me to the English case of Porter v Magill [2002] A.C. 357. This was the fascinating case involving challenges by the then leader and deputy leader of Westminster City Council against the findings of an independent auditor appointed by the Audit Commision to the effect that they had each engaged in wilful misconduct in their capacities as councillors in engaging in the use of council funds and property for party political advantage and imposing a substantial surcharge upon each of them on the basis that the local authority had sustained loss as a consequence of their illegal actions. So far as concerns the present case, what is important is the consideration of the issue of apparent bias which the auditor was alleged to have displayed when he held a press conference at which his provisional findings, adverse to the leader and deputy leader of the council, were announced and which received widespread publicity. When the case reached the House of Lords, this aspect of the appeal was dealt with by Lord Hope of Craighead at page 481 onwards and the test which he divined appears to me to be applicable to both the law of England and Scotland for the reasons set out between paras 99 and 105 of his judgment (pp. 493-495) where he amended the test previously approved in England to bring it into line with both the law of Scotland and ECHR jurisprudence. That test is now set out in Para. 102 of the judgment and is in the following terms:-
" The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased."
This, said counsel for the appellants, demonstrated that the test was not an abstract one, but to be applied in the light of the given circumstances of the case applying the standard of the well-informed hypothetical bystander. It meant that a decision making tribunal must not approach its decision making process with a closed mind. Such a tribunal must not pre-determine matters.
It seemed to me that these last two sentences were an unnecessary and unhelpful elaboration on the clear test proponed by Lord Hope of Craighead and it was more to the point simply to focus on all the relevant circumstances of the particular case as a backdrop to the particular act or omission said to demonstrate bias.
Counsel next referred to Tennent Caledonian Breweries Limited v City of Aberdeen District Licensing Board 1987 SLT (Sh. Ct.) 2, a decision of Sheriff A.L. Stewart, Q.C. The appellants averred that the Board had acted contrary to natural justice as in the present case. It was in some respects a case similar to the present though it arose out of the provisions of Section 31 of the 1976 Act, as amended. The Chief Constable of Grampian Constabulary had submitted a complaint to the effect that the licence holder of the relevant premises was no longer a fit and proper person to be the holder of the licence on the basis of a substantial number of occurrences in and around the premises in the recent past in which the police had had to become involved. It appears that, prior to hearing from counsel for the licensees at the meeting where suspension of the licence was in contemplation, a member of the Board brandished his papers, stated that the complaint and its schedule manifested "a disgraceful catalogue" of events and called upon counsel to agree with him, asking whether the material in support of the motion to suspend the licence was "lies." This was said to have had the effect of influencing the Board's decision at a time when the Board had not heard full submissions from the parties.
In evaluating the importance of this decision for present purposes, it seems to me appropriate, especially having regard to Lord Hope's test, that I should refer to the concerns expressed by Sheriff Stewart expressed in the first column of his Opinion on page 4 of the report where he makes the point that, at the time he was dealing with the case, a hearing of evidence on a summary application of this nature would not have been competent, yet it was plain from the parties' respective averments that there was a factual dispute on the critical issue in the case, which issue he was unable to resolve.
Sheriff Stewart was however clear that the intervention of the board member at the stage at which he had intervened i.e. before he had heard the response from counsel for the licensees, was quite improper, containing as it did a clear inference that the material presented by the Chief Constable in support of the complaint was not susceptible to challenge. However, Sheriff Stewart also made the points that this individual was only one of ten, that his observations had been made at an early stage and had not been repeated, nor had the innuendo which they carried, and no other member of the Board had expressed agreement. Sheriff Stewart concluded that the inappropriate observation had not affected the attitude or decision making capabilities of the other members of the Board and he was accordingly unable to conclude that the Board had acted in a manner contrary to natural justice.
It seems to me that this is a very good and clear illustration of the difficulty for the pursuers in the present case in demonstrating satisfactorily that the " first defenders" who are a licensing committee consisting of nine individuals were biased merely on the basis of observations by one member of the committee. As counsel fairly submitted, it was also a good illustration of the point that each case must turn on its own particular facts. Counsel then appeared to submit that it was not his position in the present case that the Board as a whole was biased but that the behaviour of the Lord Provost and the supplementary behaviour, submitted with significantly less conviction, which appeared supportive of the position of the Lord Provost, by another member of the board, Mrs. Shimi, created the appearance of bias. I have some difficulty with the notion that the first defenders can be shown to have been biased if counsel concedes that he cannot demonstrate that the Board as a whole was biased, but again it illustrates the difficulty in establishing bias on the part of a committee charged with decision making responsibilities when one has to try to determine the will of the committee and the method used and the issues considered in reaching its decision. In this context it is vital to appreciate that the reasons given by a licensing board, as promulgated by section 18(1) of the 1976 Act are those contained in the written statement of reasons and would not normally comprise anything said at the time the decision was intimated.
He went on to submit that justice must be seen to be done, a submission which is trite. He submitted that it was not necessary for him to establish that the outcome would have been different but for the bias which is, again, trite law and, in any event, plainly spelt out in the decision in Barrs.(supra). He then said that "to simply close one's mind to the possibility of reconsideration is a clear illustration of the appearance of pre-disposition such that the impression one is left with is the impression of inflexibility." It is noteworthy that he did not offer any particular authority for that proposition. He went on to say that in the present circumstances the parties were not dealt with fairly and equally. In any event, if the circumstances created the impression that all parties had not been treated fairly and equally, as he submitted the present circumstances did, then the decision should be set aside.
I should hold that these circumstances demonstrated a breach of natural justice. "As long as I am here we will not have a licensed betting office in Reform Street," was an intimation that the Lord Provost had "set the Board on a policy" of not having a licensed betting office in Reform Street. Leaving aside my difficulty in comprehending how an individual contribution, in the absence of any indication of acceptance of the propriety of that contribution by members of the Board in general, can "set the Board on a policy," if there was a policy, and I am not to be understood as accepting that there was, it does not follow from the application of that policy that there was any bias against these particular applicants as opposed to licensed betting shop operators in general. I agree with counsel's submissions that so far as the individual member of the Board is concerned, the words accepted as having been uttered are consistent with an avowed intention to oppose any application for the location of a betting shop in Reform Street but that begs a number of questions. First and foremost, what evidence is there that this utterance had any influence on the other members of the Board, apart, perhaps, from Mrs. Shimi, who appeared to make observations which might be thought to be consistent with those of the Lord Provost - and therefore what evidence is there that the Board as a whole was influenced by the observations ? Secondly, standing that it is within the province of the Board to determine the suitability of a location for the location of a licensed betting office, why is a member of a licensing authority not permitted to observe, using the local knowledge implied to all such bodies, that this is an inappropriate location for a licensed betting office and where in the statement by the Lord Provost is there any indication of bias against these particular applicants ? Despite counsel's lengthy submissions, I do not consider that I received any satisfactory answer to any of these questions. He made some effort to place emphasis on the use of the word "we" as implying that where the Lord Provost led, others would inevitably follow, presumably by some inspecific mystical process but in the absence of any evidence to that effect that was not a conclusion I could possibly reach.
I accept that it is appropriate to describe the Lord Provost's contribution as "trenchant," as counsel did. I was significantly less impressed however by counsel's next submission that there was a sub-text of "and I will make this happen." The Lord Provost's choice of words is, perhaps, unfortunate and I would have to accept, as would he, that his intention could be seen to have been to persuade other board members to come to the same conclusion as him but there is no evidence to support a claim that, beyond his normal powers of persuasion, he used or was even in a position to use, any improper form of influence. In fact the evidence is to the contrary. Four of the nine members plainly took no heed of his observation and voted in favour of granting the application. There is no basis for concluding that other board members were influenced by the observation.
Counsel commented that the offending observation was made at the end of submissions and immediately prior to the vote. He seemed to think that this favoured his assertion that there had thus been a breach of natural justice. The contrary is true. Submissions having been completed, it was the time for the members of the board to consider the content of the submissions and their decision. This was plainly a matter of controversy standing the objections which had been taken to the application. It was entirely apt that at that point there should have been some discussion among the members of the board about issues germane to their decision. It does not follow that other board members would be influenced one way or the other by any particular comment. Again, the evidence of the vote suggests the contrary.
Counsel submitted that the circumstances left a sense of "unease" and were tainted with the "appearance of the possibility of injustice." There was therefore a real risk of apparent bias. There had been a breach of natural justice.
With regard to the remedy, because there had been a recent breach of natural justice on the part of the first defenders towards these pursuers, the first defenders would be unable to consider any requirement to reconsider their decision uninfluenced by their original biased decision. I should therefore remit the case back to the first defenders with a direction to grant the application. Alternatively, I should at least issue a written judgment with guidance as to their conduct before sending the issue back to the first defenders for their further consideration. No authority was offered for the proposition that it was open to me to "guide their conduct" whatever that might mean.
Expenses should follow success. I should certify the cause as suitable for the employment of junior counsel. Licensing law was still regarded as a specialist area and the cause was one of importance and complexity.
Mr. Woodcock, Solicitor, for the first defenders accepted as a matter of generality that he took little issue with the summary of the law on natural justice as advanced by counsel for the appellants. He accepted, in particular, the applicability of the reasoning in both Barrs case and in Porter v Magill. The latter case proponed the involvement of a hypothetical fair minded and informed observer.
The particular circumstances are that all parties interested in the application and objecting to it were present and had the opportunity to make full submissions. The observations made by the Lord Provost were not made until these submissions had concluded. He regarded with incredulity the suggestion that some sinister attribution should attach to the Lord Provost's use of the plural pronoun. All he had done was express an opinion that Reform Street was an inappropriate location for a licensed betting office.
In the summary application intimating the appeal, there was no challenge to the first defenders' determination, as a board, that the location was unsuitable and so that was not the issue in this appeal. Nonetheless, he drew may attention to the decision in William Hill (Scotland) Limited v Kyle & Carrick District Licensing Board 1991 SLT 559, where the crux of the matter was that the board was held to have decided the application on an issue which had not been placed before the appellants for their comment, a clear breach of natural justice. What was useful to me in the context of the present case is the court's observations about the meaning of the word "location." It was said that a wider rather than a narrower view should be applied to the words "character" and "location." Two sheriff court decisions were referred to in the judgment of the court, Burns v Bryce & others (1962) 78 Sh. Ct. Rep 125 and Craig v Motherwell & Wishaw Licensing Court 1962 SLT (Sh.Ct) 79. In the former case the sheriff had indicated that "location" should be given its natural meaning and that loss of amenity to surrounding property would be a relevant consideration. In the latter case, the sheriff held that the word "location" did not have a restricted meaning, as had been contended, and that it was open to a licensing authority to consider the effect of proposed betting office on other property in the neighbourhood. Support for the wider interpretation could also be found at Smith & Monkcom, The Law of Betting, Gaming and Lotteries, p.32.
There was no obligation on an individual member of a licensing board to explain his role in any particular decision. The obligation to issue a statement of reasons for the decision in fact rested upon the clerk to the board who had to issue that statement in writing within seven days of notification of the lodgment of an appeal against the decision. In this case, that statement of reasons did not appear to be being attacked, as opposed to the observations of one, or, at worst, two members of the board. Since "location" was one of the discretionary statutory grounds for refusal, and the reason for the determination had been that this was not considered to be a suitable location for a licensed betting office, and that was not the subject of appeal, how could it be argued that a remark about the unsuitability of the location demonstrated bias, he posed. The problem, he submitted, had been dealt with in Piper v Kyle & Carrick District Council 1988 SLT 267.
In that case, which concerned the refusal to renew a private hire car driver's licence, the basis for the appeal was a failure on the part of the board to exercise its discretion properly on account of one of its members stating that he would refuse any application where a driver had committed a road traffic offence during the period of the licence to be renewed. It was held that there was no evidence that the board as a whole had exercised its discretion unreasonably nor did the remarks coming when they did, at the end of submissions in relation to the particular application, as here, and having regard to their content amount either to a statement of policy by the board nor a fettering of its discretion. Technically, that case is distinguishable from the present in that the basis for the appeal was a failure to exercise discretion properly rather than a demonstration of bias but when one looks at the facts and the reasoning why the corporate decision cannot be said to have been unduly influenced by the views of one member, it is difficult to distinguish the circumstances from those in the present case.
The collective decision in the present case was for refusal. The board was entitled to exercise its discretion to come to that conclusion and had done so. That did not appear to be challenged in the present appeal and therefore the present appeal could not succeed, said Mr. Woodcock.
Even if one member expressed a biased view, and he did not by any means concede that that was what had happened here, it did not follow that the committee had failed to exercise its discretion properly. He referred me to Ranaldi v City of Edinburgh District Council 2000 SCLR 368 which was a case where the daughter of a deceased taxi licence holder made application for, in effect, her late father's licence and that was refused on the ground that there was nothing special about her circumstances to take her outwith the policy of not granting a licence where there was no significant unmet demand for taxis. The argument in the case was largely about whether the content of the statement of reasons accurately reflected the "apparent reason" for the determination spoken by one of the board members at the time of refusal, which might have indicated a failure to exercise discretion properly but at page 370F the Lord Justice Clerk (Cullen) said:-
" As [counsel for the respondents] pointed out, the fact that a member of the committee put forward his reason for moving the committee to refuse the application does not entail that the chairman or the other members of the committee must have had the same reason for voting in favour of his motion. So long as they were in favour of the application being refused, it was unnecessary for them to give any reason, let alone propose an amendment to his motion. For these reasons we do not accept [appellant's counsel's] interpretation of what happened at the meeting, on which his submissions depend.
We would add this. It is plain from the scheme of the 1982 Act that a statement in writing of the reasons for arriving at a decision is differentiated from the decision itself. Reasons for a decision may be required of the authority on a request being made by a relevant person within twenty eight days of the decision, or by the sheriff in connection with an appeal (paragraph 17(2) and (3)). These reasons will normally be regarded as the final expression of the collective reasons for the decision. We say normally, since it is possible that, while there is no statutory provision to this effect, the licensing authority may anticipate such a requirement by giving their reasons at the time when they give formal notification of their decision. However, the reasons which individual members of the committee may give at the time when the committee is coming to a decision seem to us to stand in a different position. They are not the same as a fully considered statement of reasons which is given to an interested party for the purpose of informing him as to the full reasons for a decision and enabling him to decide whether or not he should proceed with an appeal."
While that case related to the provisions of the Civic Government (Scotland) Act, 1982, so far as concerns the approach to statements of reasons of a licensing board, the provisions of the 1963 Act incorporating as it does the provisions of the 1976 Act as amended are virtually indistinguishable and it seems to me that the foregoing decision is binding upon me and for all practical purposes on all fours with the present case. The effect of that is to render this appeal unstateable in the absence of an attack on the statement of reasons dated 5th. July, 2005 as issued to the Sheriff Clerk, Dundee, in accordance with the statutory provisions. Since the attack was confined to the pleadings set out in Art 6 of condescendence in the Record, No.7 of process, and that does not mention the statement of reasons, in my view this application must necessarily fail.
Mr. Woodcock submitted that were I not to agree with his argument that the appeal should be refused then I should remit the application to the first defenders for reconsideration. He suggested that it would be open to the court to direct that the two members of the board who had made the allegedly inappropriate observations should be excluded from the process of reconsideration and I accept that that is a course which would be competent were I to be of the opinion that reconsideration was otherwise appropriate. It would, of course, only be appropriate if I concluded that these individuals had demonstrated bias against the appellants which had undermined somehow the decision of the board.
He was content to leave the issue of certification of the cause as suitable for the employment of counsel to me.
Mrs. Wolfe, Advocate, for the third defenders largely adopted Mr. Woodcock's submissions and moved me to refuse the appeal, failing which to remit to the first defenders with reasons to enable them to reconsider the decision. If the present appeal were to be allowed there remained substantive arguments which the objectors could validly advance before the first defenders at a reconsideration hearing. This appeal was about form not substance. The question of demand and overprovision, she said, had been put in issue at the original hearing. There is, I observe, a vague hint of this in the penultimate paragraph of page 2 of the reasons letter in the brief narration of the submissions made by the second defenders to the hearing before the first defenders, though the first defenders have determined the application on the issue of location and have not directed themselves to any question about overprovision. It would, she submitted, only be appropriate to direct the board to grant the licence if there were no basis for refusal and that was not the case here.
Mrs. Wolfe agreed that expenses should follow success and submitted that I should certify the cause as one suitable for the employment of junior counsel.
She the considered the ratio of Porter v Magill (supra). The appellant here had expressly departed from any case of actual as opposed to apparent bias. She referred to the test referred by Lord Hope of Craighead at para.100 of his judgment on p.493 and to his refinement contained in the immediately succeeding paragraphs. It was a two part test requiring first the ascertainment of all the circumstances having a bearing on the issue followed by an assessment of whether in those circumstances a fair minded and informed observer would conclude that there was a real possibility of bias. The appellants, she submitted, had completely failed to meet that test. She referred me paras. 104 and 105 in particular, where Lord Hope referred to the decision of the European Court of Human Rights in Hauschildt v Denmark where the court emphasised that is decisive is whether any fears expressed by the complainer are objectively justified. Of the circumstances of the particular case and on the behaviour of the auditor alleged to have demonstrated bias, he said, " I think it is plain, as the Divisional Court observed at p.174B, that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased."
Mrs. Wolfe further referred to Bradford v McLeod 1986 SLT 244 and Lawal v Northern Spirit Limited [2003] UKHL 35. The former related to a series of cases in Kilmarnock Sheriff Court involving prosecutions of miners during the miners' strike in 1984. At a social function, a sheriff had been heard to say something to the effect that he would not grant legal aid to miners, the grant of legal aid for summary trials being at that time in the control of sheriffs. A solicitor who had been present on the occasion when the remark had been made moved the sheriff to disqualify himself from acting on the basis that justice could not be seen to be done if he continued to preside given the clear indication he had given of his attitude towards the behaviour of striking miners. The sheriff refused to disqualify himself. On appeal by Bill of Suspension, the High Court determined that in the circumstances, following an investigation by the sheriff principal, the behaviour of the sheriff would cause a fair minded observer to consider that he might be biased which was sufficient to prevent justice being seen to be done and that the sheriff had misdirected himself in founding solely on his judicial oath. Both the Lord Justice Clerk (Ross) and Lord Hunter made reference to a passage from the judgment of Eve J. in Law v Chartered Institute of Patent Agents [1919] 2Ch 276, which seem apposite, viz.:-
" If there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that man's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists." Their Lordships referred to this in the context of the need to uphold the fundamental principle that justice requires to be visibly done.
In the latter case, a similar result was reached. This was a case arising out of a complaint of racial discrimination where the case was dismissed at an employment tribunal in England. When the appeal to the Employment Appeal Tribunal commenced, it was observed that senior counsel for the employer had previously sat as a recorder with one of the lay members of the Employment Appeal Tribunal. Objection was taken on account of what was described as the "risk of subconscious bias," though it has the appearance to me of another species of justice requiring to be seen to be done. It appears that the Employment Appeal Tribunal adjourned the appeal to be dealt with by a differently constituted court, without formally determining the issue. For reasons known only to itself, however, the newly constituted EAT decided that it would determine the issue and determined that in the circumstances there was no real possibility of bias. That decision was affirmed in the Court of Appeal. The claimant appealed to the House of Lords who concluded that the practice whereby part-time judges in the Employment Appeal Tribunal might appear as counsel before a tribunal having previously sat with one or more of the lay members of the bench hearing the appeal should be discontinued, as a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the lay members might be subconsciously biased. The appeal was accordingly allowed. Reliance was placed on the test as finally refined by Lord Hope in Porter v Magill. I was also referred by Mrs. Wolfe to a subsequent decision of the Court of Appeal in England in Feld v London Borough of Barnet [2004] EWCA Civ 1307 in which apparent bias was alleged against the local authority where the same reviewing officer reviewed two decisions of housing officers against which the applicant who was homeless had sought reviews. Apart from the fact that the test adumbrated in Porter v Magill was followed, I did not consider that this decision was of any other significance in the present context.
Mrs. Wolfe, having set out the relevant law as she saw it, then turned to the circumstances of the present case. The factors in issue were (i) the regeneration of Reform Street, Dundee and its present architectural merit;(ii) that it had a definable retail and financial character;(iii) that there was a desire not to dilute that character; and (iv) that there had been a prior attempt by the present appellants for a licence to operate a betting shop at the same premises. The previous decision, to refuse, had been based on amenity grounds. That decision had been the subject of an unsuccessful appeal to the sheriff in September, 2003. But for their abandonment at the outset of the present hearing and leaving aside the allegation of bias or apparent bias as it now seemed to be, the same issues would have been canvassed once more as had previously been canvassed. So this was not a new situation for these pursuers. The desire on the part of the first defenders not to dilute the quality of Reform Street had previously received judicial support - and I was referred to the decision of Sheriff James P. Scott of 2nd. September, 2003. There had been no material change in the character of the street since then. This was therefore a "well tested issue." Parties had been legally represented. Those whom she represented had lodged objections in which "locality" was patently the issue. The pursuers knew that they would require to meet those objections if they were to be successful in their application and they took the opportunity to make full representations in the light of the objections in which the previous failed application was recognised. All this took place in public.
Of critical importance was the stage at which the allegedly biased remarks were made. This was not a case of pre-judgment. All parties had spoken and the first defenders were "at the deliberative stage." The observation made was one made with candour but it did not demonstrate bias or even apparent bias. It reflected the prior testing of the issue. The first defenders' position generally and the position expressed by the Lord Provost reflected prior procedure. It also reflected a position which had been vindicated in the past.
In any event, the decision of the first defenders was a collective decision and the reasons set out for it in the letter issued by the clerk to the board to the sheriff clerk in response to the present application to the court were not subject to attack. The decision had been taken by those appointed to the licensing board to whom the legislature had devolved responsibility for such decisions locally. They were not trained judged but were representatives of the local community. It was desirable that like cases should be dealt with similarly albeit consistent with each case being considered on its own merits. That was all that the observations of the Lord Provost did. He was not a trained judge, she submitted, and this was an administrative as opposed to a judicial determination. His observations were laudable for their consistency.
It is within judicial knowledge that the Lord Provost is a Justice of the Peace and in that capacity will in fact have received judicial training, though, of course, he is not a professional judge. Without considering authority on the point, I am also inclined to think that the Inner House has on more than one occasion categorised decision of licensing boards as judicial or at least quasi-judicial in their nature. Having said that, I accept that this was an off the cuff observation which, as counsel rightly submitted, reflected the position previously adopted to a previous application and it is not to be submitted to detailed conveyancing analysis provided this fair minded and informed observer does not consider that, prima facie, it can be said to constitute an act of apparent bias. In any event, the remark itself formed no part of the reasons for the decision by the first defenders.
Mrs. Wolfe turned to the issue of locality. She posed the question, could a licensing board properly take the view that a particular locality could never be suitable for the location of a licensed betting office. The law generally was that such a board or committee must not fetter the exercise of the discretion conferred upon them by never allowing any exceptions to a general policy and that is a principle which has given rise to much difficulty in the context of regulating taxi operators. But, she submitted, it was still the case that it would be permissible to regard the location of a licensed betting office next to a school or church as unsatisfactory. It was open to a licensing board to seek to preserve the character of a particular location. Such a desire did not betoken a pre-judging which was an essential element in any act of bias.
These foregoing, she said, were the circumstances in which the assessment of apparent bias was to be made, applying the Porter v Magill test.
The second part of the test then was would a fair minded observer conclude that the board was biased in these circumstances. The answer was clearly no.
In relation to the observations about the empty premises and it being better for them to be empty than to have the wrong occupant - the remarks attributed to Mrs. Shimi -the same considerations applied having regard to the timing of these remarks and what effect, if any, they had on the collective decision making process engaged in by the first defenders.
For all these reasons the appeal should be refused, otherwise the function of the first defenders in these circumstances would be being reduced to one of rubber-stamping. I should sustain the fifth plea-in-law for the third defenders. If I was not for that determination, then I should remit back to the first defenders for reconsideration for, at the very least, overprovision would remain a live issue.
In a brief response, counsel for the pursuers told me that he took no issue with the decision in the case of Lawal. The Piper case involved an alleged unreasonable exercise of discretion rather than an allegation of bias and was thus distinguishable, no breach of natural justice being argued. In Ranaldi's case there was a reservation of opinion as to whether there had been "some impropriety" and it concerned what happened at the outset rather than what happened at the deliberative stage. In the present case an alleged breach of natural justice was a specified statutory ground of appeal. That was not so in some of the other illustrations advanced. Here there had been a breach of the principles of natural justice and the appeal should be sustained.
Given the limitation of the appeal to the alleged breach of natural justice, specifically the allegation that the remarks made by the Lord Provost and, to a lesser extent, by Mrs. Shimi, at the conclusion of submissions on the application and objections thereto constituted an act of apparent bias, it is appropriate to start with the test adumbrated in Porter v Magill. I suppose there may be still be some theoretical debate about whether a decision in the House of Lords on an English decision is binding upon me, but when Their Lordships and, in particular, Lord Hope of Craighead make it as abundantly clear as they do in their respective Opinions that they are intent in formulating a test for apparent bias which will bring the law of England into line with that of Scotland, as well as the rest of the Commonwealth and consistent whether the consideration of apparent bias arises at common law on an alleged breach of natural justice or arises from an alleged breach of Art.6 of the European Convention, I would be unwise in the extreme to consider other than that I should follow the desiderated two stage test. Incidentally, Lord Hope's definition knocks out any inference to be drawn from the response by counsel for the pursuers that the statutory provision of a ground of appeal based on an alleged breach of natural justice is somehow different where the plea is simply taken at common law.
So what are the relevant circumstances in the present case ? The first, as Mrs. Wolfe strongly submitted, seems to me necessarily to be that this is a re-application for a licence for a betting shop in same premises in the same location as had previously been refused on amenity grounds. Though I was only referred to it in passing, I directed myself to the decision by Sheriff James. P. Scott of 2nd. September, 2003 which involved at least some of the same parties in the same roles - there having then been a greater number of objectors. I observe that in the reasons letter referred to by Sheriff Scott in page 2 of his judgment there is a reference to overprovision. The letter then continues, at page 3 of his judgment, " The Board was of the opinion that the location of the premises made them unsuitable for use as a licensed betting office. As was pointed out by the representative on behalf of Ladbrokes, an application for premises nearby had been refused in 1999 on the grounds (sic) of the unsuitability of the location. The same considerations applied to this application." The reasons letter then goes on to narrate the presence of a number of important buildings in the locality and to discuss the preservation of the character of Reform Street. I will return to that. I wanted to be clear upon what basis Sheriff Scott had refused the appeal and he concluded that there had been no unreasonable exercise of discretion on the part of the licensing board in concluding that the locality was unsuitable for a licensed betting office. So when Mrs. Wolfe talks about the appeal having been refused "on amenity grounds" for the avoidance of any doubt I can properly conclude that the Board's decision was on the ground of locality and that Sheriff Scott upheld that decision. Standing that decision, and the previous decision in 1999 reaching apparently the same decision for the same reason, some context is given to the remark made by the Lord Provost. He was, it seems to me, rehearsing the position which was itself reflected in some of the submissions made by the pursuers to the effect that there was now better reason to grant the application than there had previously been, that being their inevitable starting position. All he was saying was that in his opinion, nothing about the locality and its unsuitability for a licensed betting office had changed.
It is agreed in the pleadings that what the Lord Provost said was, "as long as I am here we will not have a licensed betting office in Reform Street." It is important to note that that was said at the conclusion of all submissions on the application and objections and was not at a time when an inference of pre-judgment could be made.
Most significantly of all, however, is the circumstance that this was a decision taken by a committee and not an individual. The collective reasons for the decision are contained in the letter dated 5th. July, 2005 from the first defenders' clerk to the sheriff clerk, which reasons have not been attacked in this appeal. The decision of the first defenders was by five votes to four, for refusal, so it is patent that at least four members of the committee where wholly uninfluenced by the remarks and there is no evidence to suggest that the remaining members who also voted refusal did so merely to support the Lord Provost. There is no attack on the reasons contained in the letter from the clerk to the board which are the collective reasons for the decision and on that basis alone, in my opinion, this appeal must fail.
In any event, being hopefully a fair-minded and reasonably well informed observer, I am at a loss to see how it can possibly be considered that the remarks which have been the subject of criticism can be said to demonstrate apparent bias. There is no hint of bias towards the pursuers. There is no suggestion that this application should be opposed because it is being made by them as opposed to any other bookmaker. So long as the word "locality" remains as a criterion for a discretionary t refusal of an application, it is impossible to conclude that a genuinely held view that a particular locality was unsuitable for the presence of a licensed betting office demonstrates apparent bias. Even supposing it could be said that thinking that there are places anywhere which remain unsuitable for the location of a licensed betting office demonstrates a bias against bookmakers, it would be a statutorily built in bias, the inevitable consequence of a licensing board being obliged to consider inter alia the suitability of the proposed or continued location of premises at a particular place.
It could be argued, taking this to its logical conclusion, that the entire process of licensing of betting offices demonstrates a bias against bookmakers in that one can read into the licensing process the conclusion that bookmakers need to be regulated. That remains the conclusion of Parliament and I am at a loss to see how a person can be said to be biased for expressing a similar conclusion.
The appeal is accordingly refused. I shall repel all the pursuer's pleas-in-law and sustain the fourth plea-in-law for the first defenders and the fifth plea-in-law for the third defenders. I shall sanction the cause as suitable for the employment of junior counsel. The pursuers will be found liable to each of the first and third defenders in the expenses of the cause.
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
JUDGMENT RECORD AND CATEGORISATION SHEET
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CASE NAME: TOTE BOOKMAKERS LIMITED v DUNDEE CITY
LICENSING BOARD AND ANOTHER
CASE NUMBER: B228/05
AUTHOR: SHERIFF R.A. DAVIDSON
DATE SIGNED BY
AUTHOR: 21st. February, 2006.
DATE RECEIVED BY
MRS. CRANSTON:
DATE PUBLISHED ON
WEB:
SHERIFF'S EDITING COMMENTS:
Was editing necessary ? No.
CATEGORISATION OF JUDGMENT
The judgment should be recorded under the following category
Licensing