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Cite as: [2007] ScotSC 53

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Case Reference Number:

B423/06

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

JUDGMENT OF SHERIFF WILLIAM HOLLIGAN

in causa

PURSUERS ALLDAYS STORES LIMITED, Robert Owen House, 87 Bath Street, Glasgow and PAMELA GREIG, 12 Glen Lyon Road, Kirkcaldy

against

DEFENDERS CENTRAL FIFE DIVISIONAL LICENSING BOARD, Town House, Kirkcaldy, Fife

Act: Skinner Alt: Blair

KIRKCALDY, September 2007. The sheriff, on resuming consideration of the cause, having heard counsel for the parties, counsel for the defenders not opposing, sustains the pursuers' first plea in law and repels the defenders' first, second, third and fourth pleas in law, ALLOWS the appeal; on the opposed motion of the defenders sustains the defenders' 5^th plea in law; REMITS the case to the defenders for reconsideration of their decision ; RESERVES all questions of expenses and APPOINTS parties to be heard thereon on Thursday, 11 October 2007 at 10.00 am within the Sheriff Court House, Whytescauseway, Kirkcaldy.

NOTE

[1] In this summary application, two pursuers ("the first pursuer" and "the second pursuer") appeal against a decision of the defenders, Central Fife Divisional Licensing Board ("the Board") taken on 6 November 2006 ("the decision") in which the Board suspended the off-sales licence held by the pursuers relative to the premises known as Scottish Co-op, 7 Cadham Centre, Glenrothes ("the premises"). The suspension in relation to each of the pursuers was for a period of three months.

[2 ] The Board issued a statement of reasons dated 16 November 2006 ("the reasons") (Production No.1). There was an error in the reasons in relation to the designation of the first pursuers which was later corrected. Nothing turns upon that error.

[3 ] There does not appear to be any factual dispute as to proceedings before the Board on 6 November 2006, nor indeed as to the basic facts relied on by the Board in deciding to suspend the licences.

[4 ] Mr Skinner, counsel for the pursuers, advanced a number of grounds in support of the appeal. In his reply, Mr Blair, counsel for the Board, accepted that the appeal should be allowed. The issue between the parties was what I should do in relation to the matter, given that it was conceded the appeal should be allowed. In view of the submissions put to me, it is necessary that I set out a brief summary of the proceedings before the Board; the grounds of appeal; and the basis upon which it was conceded the appeal should be allowed.

[5 ] The proceedings before the Board were convened following a complaint submitted by the Chief Constable pursuant to section 31 of the Licensing (Scotland) Act 1976 ("the 1976 Act"). The complaint related to the sale of alcohol at the premises on two occasions to persons aged 16 (I will refer to these as the "underage sales"). The first underage sale took place on 1 July 2006 and the second on 28 July 2006. The first underage sale was made as part of a test purchasing scheme introduced pursuant to section 105 of the Licensing (Scotland) Act 2005. That sale was made by an employee of the first pursuers and took place within the premises. The circumstances surrounding the second sale were less clear. Police officers spoke to youths in the car park outside the premises, one of whom had a bottle of alcohol. In short, it was said that the alcohol had been purchased by a 16 year old in the premises. The first pursuers accepted that the underage sale had taken place on the premises, or at least did not dispute that it had taken place. In relation to the first underage sale, the employee concerned was subject to an internal inquiry. She accepted that she had acted contrary to the first pursuers' policy on the sale of alcohol. She resigned from her employment. Had she not done so, she would have faced disciplinary action. In relation to the second underage sale, given the uncertainty as to the factual position as identified by the first pursuers, no disciplinary action was taken.

[6 ] The pursuers were legally represented on 6 November 2006. Production No.2 is a copy of the submission presented to the Board on that day ("the submission"). There were two handwritten items in the submission (both on page 12 thereof) read to the Board. As they are difficult to read in the copy, Mr Skinner narrated their terms: "Item 23 at 23.6 of the papers before the Board indicates she refused a sale that night at 21.57 and the following day at 21.53"; and "On 28 July it is recorded she refused two sales for lack of identification as well as twice on the previous day." (These are references to the conduct of one of the employees.)

[7 ] I do not think it is necessary for me to set out all that was contained within the submission and read to me by Mr Skinner. I summarise the position as follows. The first name pursuer is a member of the Co-operative Group (CWS) Ltd and that Group is a member of the Retail Alcohol Standards Group ("RASG") which is concerned inter alia with preventing the misuse of alcohol. The RASG appears to be a UK wide body which has, in consultation with the Home Office, introduced initiatives to prevent the sale of alcohol to those underage.

[8 ] The first pursuers have a system designed to prevent the sale of alcohol to those underage, together with an extensive system of staff training. In short, the system is designed to prevent the sale of alcohol to those under the age of 21 without the purchaser providing adequate proof of identity. There is signage throughout the stores detailing the policy. Staff are regularly reminded of their responsibilities when first using an electronic till. There is also a system to log certain transactions concerning alcohol. A presentation was made to Fife Constabulary explaining the procedures for the sale of alcohol undertaken by the first pursuers. There is also a system of internal test purchases carried out by the Group so as to ensure compliance with their policies and procedures.

[9 ] Following the underage sales the first pursuers reviewed the training records of both employees concerned in the underage sales. It is sufficient to say it was established that both employees had been trained. The first employee was relatively new and appears to have started employment in or about the middle of June 2006. There was material to show that both employees had refused to sell alcohol on the grounds of underage and in the case of the second employee it was recorded that she had, in the period from 12 January 2006 to 28 July 2006, refused some 157 age restricted sales.

[10 ] In addition to these submissions, further submissions were made to the Board in relation to whether the pursuers were fit and proper persons to hold licences and the question of suspension.

[11 ] Under the heading of "Suspension", reference was made in the submission to the absence of criminal proceedings and the statutory defences provided by section 67(2) of the 1976 Act. I was told that no criminal proceedings have ever been brought in relation to these matters.

[12 ] Mr Skinner referred to the reasons. The substance of the Board's reasoning is set out on page 3. Pages 1 and 2 narrate the background and the material before the Board. I note it is recorded that evidence was led before the Board. Neither counsel made any reference to this and I assume nothing turns on it. The evidence appears to relate to the underage sales themselves. As I understand it, the fact of the underage sales and the pursuers' factual account of their systems and procedures were not disputed. The relevant parts of the Board's reasoning are as follows:

"Notwithstanding that training, it appeared to the Board that on the first occasion, the 16 year old test purchaser had encountered no obstacles to the purchase of alcohol in your clients' shop at the Cadham Centre and that notwithstanding her experience and training, a member of staff on 28 July had sold alcohol to a 16 year old.

The Board was not satisfied that the training given to staff, nor the control exercised by your clients, was sufficiently effective to prevent the sale of alcohol to young persons.

The Board was very concerned about the sale of alcohol to young persons. They noted Chief Superintendent Laing's response to a question that Fife suffers from the affects of underage alcohol consumption. He added that alcohol misuse was one of the main causes of costs to Health Boards and that, as in most areas of Fife, there were calls to the police in relation to youth disorder in the Cadham area.

The Board was of the opinion that your clients, Alldays Stores Limited, control and monitoring of its training and operational activities in relation to age related alcohol sales was deficient and was not sufficiently effective to prevent sales of alcohol to 16 year olds. The Board was of the opinion that Alldays Stores Limited were not fit and proper persons to hold a licence. The Board was also of the opinion that your clients Alldays Stores Limited, notwithstanding the amounts of training given and operational procedures put in place, had not exercised due diligence in carrying out their responsibilities as a licence holder in that the training and processes were not sufficiently effective to prevent the two sales to 16 year olds described above.

The Board were also of the opinion that the supervision and control of the staff and operational procedures in the shop by Pamela Greig, the person in terms of section 11 of the Licensing (Scotland) Act 1976 responsible for the day to day running of the premises, was also deficient and that she was not a fit and proper person to be the holder of a licence. The Board were also of the opinion that notwithstanding her training and experience, these two sales to 16 year olds had taken place and that she had not exercised due diligence in carrying out her responsibilities as a licence holder."

Legal submissions for the pursuers

[13 ] Mr Skinner began his submissions by reference to the relevant statutory provisions. As I intend to set these out later in this judgment I will not refer to them further. Mr Skinner lodged a helpful written submission which is lodged in process. As I have said, Mr Blair did not resist the appeal, nor did he dispute much of the relevant legal background. For these reasons I do not propose to rehearse all of Mr Skinner's submissions in detail but it is necessary for me to make some reference thereto. Mr Skinner put forward six separate submissions:-

(1) In reaching their decision to refuse (sic) the Board erred in law et separatim exercised their discretion in an unreasonable manner in that they reached a decision for which there was no proper basis. In support of this proposition Mr Skinner referred to Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board 1993 S.L.T. 796 at 798 I-J; Hamid v City of Glasgow Licensing Board, July 1999 (unreported) Glasgow Sheriff Court, Sheriff J.K. Mitchell; and 2002 S.L.T. 193; Sohal v City of Glasgow Licensing Board 1999 12 S.L.L.P. 22; Baxter v Central Fife Licensing Board 1999 14 S.L.L.P. 32; Paton v Wilson 1988 S.L.T. 634 at 635 H-I. Mr Skinner submitted that behind every ground of refusal there must be proper reasons and for those reasons there must be a proper basis in fact. Before a licence holder can have the draconian sanction of suspension visited upon them due to unfitness caused by a particular event or events, it must be shown, in commonsense terms, that they were to blame for the happening of these events and that blameworthiness be of sufficient magnitude to render them not fit and proper persons. Mr Skinner then went through, in detail, the policies and procedures of the first named pursuer. It was quite clear that the sole basis for the finding of unfitness was the supposed inadequacy of the system. There was no specific criticism of the system itself. The sole basis for the supposed inadequacy was that two sales to persons who turned out to be 16 had taken place. There was neither suggestion as to how the system could be improved nor any clue as to what the deficiency might be. It was perfectly obvious that the system employed did work in that both sales assistants were perfectly aware they should not sell alcohol to persons under the age of 18 and it was equally clear that the sales took place because of errors of judgment by properly trained assistants. As the case of Paton v Wilson made clear, it was judicially recognised that an individual around the age of 16 may present an appearance of either a younger or older age than he or she in fact is.

(2) The Board erred in law in that they applied to the applicants (sic) both company and nominated agent, the test of strict liability. That was an error in law. Mr Skinner referred to the cases of Baxter, Sohal and Hamid. The mere happening of the act gave rise to unfitness. That was not the correct test.

(3) Further the Board did not seem to consider whether the public interest would be served by suspension of the licence. Reference was made to section 31(1) of the 1976 Act. The public interest was expressly raised in the submission.

(4) The Board had erred in that they failed to provide adequate reasons for their decision to suspend. The test for adequacy of reasons is that laid down in Mirza v Glasgow Licensing Board 1996 S.C. 450. It is important for the licence holder to know why their system was so unfit so as to remedy the defect in the future.

(5) The Board also erred in that no reasons whatsoever were given for the period of suspension chosen.

(6) The Board erred in that they exercised their discretion in an unreasonable manner and failed to take account or at least give adequate weight to a number of matters set out in Article 5 of condescendence. Their conclusion was unreasonable in the circumstances and if they did have regard to such submissions they failed to explain in what way the systems in place or the monitoring or control thereof was so deficient as to render the company no longer a fit and proper person to be the holder of the licence.

[14 ] In relation to disposal Mr Skinner made reference to section 39(6) of the 1976 Act. The court has a discretion to reverse the decision and quash the suspension or to remit the matter with reasons to the Board for reconsideration of its decision. Mr Skinner's strong submission was to the effect that the court should reverse the decision. It may be suggested that such decisions were intended to be taken by local Boards and a remit should be granted (Matchurban Ltd v Kyle & Carrick Council 1995 S.C. 13). That approach was designed to protect the public interest against a situation where the applicant may, for instance, gain the windfall benefit of a reversal. Such a situation may be where, for example, the Board have not expressed their decision clearly but a clear public concern about the premises exists. In such a case it is appropriate that decisions should go back. However, Parliament also gave the court an unqualified discretion to reverse the decision when it felt appropriate to do so looking at the whole circumstances. If the court held there was no proper basis for reaching the conclusion that it did then there would be no point in remitting to the Board (Mr Skinner referred to Leisure Inns Ltd, Hamid and Sohal). There was no reasonable basis whatsoever for holding that the pursuers were unfit to hold any licence. Secondly, attitudes had hardened. It was a reasonable inference that there is a political background to this - see page 3 of the reasons. Also, the fact that in every single case in which a report had been made by the police under Operation Spotlight, the Board had suspended. There was a real flavour of an unbreakable policy pour encourager les autres (Botterills of Blantyre v Hamilton District Licensing Board 1986 S.L.T. 14). Thirdly, the pursuers may reasonably consider that they could not be confident the Board would approach the matter freely and dispassionately. They may simply scrutinise the system, looking to nit pick and to fasten onto any conceivable lack of perfection in the system as an excuse to suspend so as to achieve the aim of their policy. Where there is any hint that a Board has an agenda beyond the dispassionate consideration of the particular application, this was a basis for overturning the decision. Fourthly, it was open to the Chief Constable to raise a fresh complaint and to seek fresh suspension proceedings and to take into account these incidents. The public interest was adequately protected.

Legal submissions for the defenders

[15 ] Mr Blair accepted there was not much difference on the law between the parties and it was not his intention to go through all of the cases in detail.

[16 ] Mr Blair accepted that there were difficulties in the approach of the Board. On the face of it, the Board did err in law in that they failed to provide adequate reasons for the decision they reached. He accepted that extended to the determination as to whether the pursuers were fit and proper persons but there were also related questions of public interest and the length of the suspension. He also accepted that, given the approach taken, it appeared that the Board had applied a test of strict liability. He accepted that there must be factors of fault in order to conclude that a licensee is not a fit and proper person. The Board's approach, on the question of strict liability was not correct. The question at large is whether the Board could, properly instructed, come to the view that the pursuers were not fit and proper persons.

[17 ] Mr Blair submitted that where there is a complaint under section 31 of the 1976 Act which, prima facie raises fitness (as a sale to any person under the age of 18 must always do) there is a practical onus on the licence holder to deal with the complaint. He accepted the pursuers sought to engage with the complaint made against them. In support of that proposition Mr Blair referred to Chief Constable v North Lanarkshire Licensing Board 2004 S.C. 304. The Board were entitled to have explained to them the position of the pursuers. The pursuers did make an attempt to give such an explanation. Mr Blair submitted that the strand which runs through the case law is that the courts should defer to licensing Boards to whom decisions had been entrusted by Parliament. Mr Blair referred to Latif v Motherwell Licensing Board 1994 S.L.T. 414; Hughes v Hamilton District Council 1991 S.L.T. 628 and Matchurban Ltd v Kyle & Carrick Council. These cases went, in particular, to the question of remit. The test as to remit, under section 39, is whether there is material upon which the Board could reasonably consider as being relevant to the fitness of the licence holder to hold a licence. There may be cases where even if there was material the court should not send back to the Board (for example, Botterills of Blantyre.) Mr Blair also referred to, and relied upon, the cases of Risky Business Ltd v City of Glasgow Licensing Board 2000 S.L.T. 923 and Leisure Inns. In short, if there was material then the matter should be sent back to the Board subject to compelling reasons not to do so. Mr Blair also referred to the case of BP Express Shopping Ltd v West Fife Divisional Licensing Board, Dunfermline Sheriff Court 15 June 2007 (unreported) Sheriff Fleming, and in particular paragraphs [18] to [20].

[18 ] In support of his submission that I should remit the matter back to the Board Mr Blair made the following submissions.

[19 ] There were two sales within three weeks in the same premises. That was in the context of an "under 21" policy and use by police of people who look their age (i.e. 16). There was no suggestion that the ages were contested. The Board could accept an argument that the purchasers looked their age or alternatively the agents may say that they want photographs. There was one experienced member of staff and one inexperienced member of staff. On the face of it it called for an explanation. There were aspects of the system which the Board might wonder about. There was an internal test purchase system in addition to the external regime operated by the police. There was an indication that if there was a failure at the stage of the internal test system, there would be re-testing within seven days of failure and refresher training. This procedure applied to internal test purchases and police test purchases but not to a failure through a test purchase. There was no test purchase after 2 July. After the first underage sale the assistant resigned. The Board might be concerned about her explanation that she was too busy. The Board might ask questions about that. Was the store undermanned? The Board was entitled to explore such explanation. In other words do the systems stand up to rigorous tests? Are staff trained to turn a blind eye when they are busy? In relation to the second test purchase, there were matters which call out for an explanation. The police intercepted the person when on patrol. The sales assistant said she had no recollection of this particular sale and there was nothing which showed on the CCTV system. The Board might say that this explanation was not credible. Should the first pursuers have done more to check about the facts of this? Do the first pursuers ask the correct questions of employees when something like this happens? So far as the question of public interest was concerned, this was a matter pre-eminently for the Board, as was the length of suspension.

[20 ] In relation to Mr Skinner's point concerning "hardening of attitudes" and whether there was a policy of "two strikes and out" that was tantamount to allegations of a fetter of the Board's discretion and bad faith. There were no averments to that effect. There were also no averments about a "political agenda". The pursuers do not make a case of a "political agenda". The Board was entitled to have regard to the question of underage drinking in the public interest. The defenders admit that there were other suspensions but overall it was for the pursuers to make their case.

[21 ] By way of reply, Mr Skinner submitted that if the court held there was no basis for the decision, what would be the purpose of a remit? Mr Skinner referred to Leisure Inns. The matter should not go back to the Board for them to ask questions which they could have done on a previous occasion but did not do so. If matters had been the other way round, it would not be open to the pursuers to put fresh material before the Board. The question was not really whether the system could be improved.

[22 ] Both counsel moved me to certify the cause as suitable for the certification of counsel. In relation to expenses Mr Skinner moved me to award his clients expenses of the action. I was told the Board's agents had intimated on 6 July 2007 their intention not to oppose the appeal. Mr Blair's submission was that the expenses of the appeal should be limited up to that date.

Decision

[23 ] I start by setting out the relevant parts of the 1976 Act:

"31(1) Where on a complaint being made to a licensing Board ... the Board is satisfied that it is in the public interest to do so, it may, in accordance with the provisions of this section, suspend a licence.

(2) A licensing Board may order the suspension of a licence on one ... of the following grounds -

(a) that the licence holder is no longer a fit and proper person to be the holder of a licence;

...

39(1) An appeal which may be made by virtue of any provisions of this Act against any decision of a licensing Board shall be to the sheriff, and a decision of the sheriff on any such appeal may include such order as to the expenses of the appeal as he thinks proper.

...

(4) The sheriff may uphold an appeal under this section only if he considers that the licensing Board in arriving at its decision -

(a) erred in law;

(b) based its decision on any incorrect material facts;

(d) exercised its discretion in an unreasonable manner.

...

(6) On upholding an appeal under the 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."

[24 ] As I have said, the real issue between the parties is not whether the appeal should be allowed, but what I ought to do, having allowed the appeal, namely remit to the Board for reconsideration, together with a note of my reasons or whether I ought to reverse the decision.

[25 ] Of the authorities to which I was referred I deal firstly with those which, in my opinion, are of limited, if any, assistance. In both Hamid and Sohal, parties were agreed what disposal was appropriate in the event the appeal was allowed. Hughes v Hamilton District Council was concerned with an error made by the sheriff in his reasoning.

[26 ] The decision in Botterills concerned an issue of over-provision of licences. The sheriff allowed an appeal against a decision of the Board and directed that a licence be granted. The sheriff concluded that attitudes had hardened and that it would be difficult for the Board to consider the application with detachment. The Second Division upheld the decision of the sheriff and saw no reason to interfere with his "discretionary power" in this regard. Leisure Inns concerned the decision of the Board to refuse a licence on the grounds of the "strong possibility" that the use of the premises would have a detrimental effect upon the community of four dwelling houses. The sheriff held that the reasons given by the Board were inadequate and ordered the grant of the application. The Second Division upheld the decision of the sheriff. In the course of his opinion, the Lord Justice Clerk (Ross) held that the reasoning of the Board was inadequate. Senior counsel for the Board invited the court to remit the matter back for reconsideration by the Board. Lord Justice Clerk Ross having examined the evidence concluded that there was, in effect, no material before the Board which would justify the particular ground of refusal. There was thus no point in remitting the case back to allow them to do so. The Lord Justice Clerk also held, albeit obiter, that the Board could not be asked to "amplify" their reasons. Lord Ross also stated (page 799 I-J) that whether to remit was a matter of discretion for the court. Matchurban Ltd concerned an application for a gaming/entertainment licence. The applications were refused by the Board. An appeal was taken against the refusal and sustained by the sheriff on the grounds of breach of natural justice. The sheriff directed that the matter be remitted to the Board for reconsideration and an appeal against that decision was taken. Accordingly, the specific issue before an Extra Division was the decision to remit. The report is in note form and does not disclose all of the facts. It would appear that a member of the committee said or did something which was inappropriate, although it is not clear whether, if at all, it was taken into account by other members of the committee. The Extra Division decided the matter on the reasoning of a decision referred to in an earlier part of their opinion (William Hill (Scotland) Ltd v Kyle & Carrick District Licensing Board 1991 S.L.T. 559). That reference suggested that if there is material on which the Board intends to rely it ought to give the parties notice thereof and an opportunity to reply. Had the Board done so, it might or might not have granted the application and therefore the proper course was to remit the matter back to consider de novo. In the course of its opinion the Extra Division said:

"... Parliament has decided that the decision on matters of this kind should be taken by the local licensing authority and there would need to be compelling reasons for removing from such an authority the responsibility for taking such decisions" (page 506J-I).

It may be important to note that the decision of the Extra Division was itself discretionary. It was agreed that the sheriff had failed to exercise his mind properly as to the exercise of the discretion conferred upon him and the matter was therefore at large for the Extra Division to consider. As I read the opinion, it seems to have been anticipated that the effect of the remit would be a completely fresh hearing. The case of Risky Business Ltd v Glasgow Licensing Board contains perhaps the most extensive analysis of when a remit should be made. The case itself concerned an application for an entertainment licence. An Extra Division refused an appeal against the decision of the sheriff to the effect that the Board had erred in refusing to grant the application. One of the arguments before the Extra Division was whether the matter should be remitted back to the Board for reconsideration. In giving the Opinion of the Court, Lord Prosser said:

"We have considered whether this was the type of case where the decision itself cannot stand, but the matter should be sent back to the Board for reconsideration and a new decision. Again, we do not think that the legal position is in doubt. The Board is the body upon which the function of deciding such matters is conferred. If they have committed some error of law or of reasoning, and if refusal would be open to them upon the correct view of the law and any reasonable assessment and balancing of available material, then of course the matter should go back to them for such balancing and assessment and reasoning to be carried out by them. This is familiar and clear, from such cases as Latif v Motherwell District Licensing Board. We have considered whether in this case there is merely a failure to express the reasoning and decision properly in the statement of reasons, so that all that is required is re-formulation of actual reasons; and we have also considered whether there was any material, whether presented to the Board or available, in the form of knowledge and expertise, upon which any reasonable Board might decide that refusal was appropriate ... But in our opinion the problem is not merely one of the way in which the reasons are expressed. And as we have concluded, there was here no material before the Board, and nothing in the way of either local knowledge or experience apposite to an assessment of premises such as these, which any reasonable Board could have held to constitute the necessary basis of refusal. ... we are satisfied that this is one of the fairly unusual cases in which the only proper disposal was a grant of the application. We therefore remit the matter to the sheriff, with instructions to him to remit the matter to the Board, with instructions to them to grant the application."

[27 ] It is axiomatic that section 39(6) can only come into operation when the appeal is allowed. The basis for allowing an appeal is set out in the four grounds in section 39(4). It is often the case, as it is here, that the facts may support one or more of the statutory grounds of appeal. The authorities establish quite clearly that, on upholding the appeal, the court then has a discretion as to whether to remit the matter to the Board for reconsideration (together with reasons) or whether to reverse or modify the decision. There is nothing in this subsection itself which gives guidance as to which of the two disposals should be followed. In my opinion, in determining which disposal to adopt the court will have regard to the basis upon which the appeal is allowed. There are dicta in Matchurban and Risky Business Ltd ("strong and compelling reasons"; "fairly unusual cases"; the Board is the "body upon which the function of deciding such matters is conferred") which might suggest there is some preference, or even a presumption, in favour of sending matters back to the Board for reconsideration. However, I do not think that is the case. In both William Hill (Scotland )Ltd and Matchurban, it appears that the Boards had information which they failed to impart to the appellants. The appellants had not the opportunity to comment on that information. The court held the Boards might or might not have granted the applications but that could only be determined when the Boards had the whole information before them. It is therefore not surprising that the matters went back to the Boards for reconsideration. Botterills was a case where a view was taken that the particular Board could not be sufficiently detached and thus the matter could not properly go back to the Board. In both Leisure Inns Ltd and Risky Business Ltd the court came to the conclusion that there was no material which would justify the Board in refusing the applications. Risky Business Ltd also involved an analysis of the reasons of the Board and whether it was just a question of reformulation of reasons. In both cases, a remit was not appropriate. I do not think that the reference to "unusual cases" in Risky Business Ltd means that the cases should normally be remitted back. It is perhaps more a reflection that there may be relatively few cases where it can be said that there is no material, and so on, which would entitle the Board to reach its conclusion.

[28 ] If I apply the above to this case, one practical difficulty is that the basis of the appeal is not matched exactly that the terms upon which it is conceded that the appeal should be allowed. Mr Skinner's attack was broader than the terms of Mr Blair's surrender. Section 39 (6) requires the sheriff to give reasons for allowing an appeal. No doubt so the Board can benefit from any guidance in the sheriff's note. As I understand Mr Blair, he accepted that the Board erred in law in that it applied a strict liability test in section 31. The test should be one of culpability or blameworthiness. He also accepted that the Board did not give adequate reasons for its decision. I understood him to mean that the Board had not explained why it was the case that the pursuers were not fit and proper persons to hold a licence. If I remit the matter back to the Board for reconsideration there will have to be further procedure before the Board. The basis of any further hearing is perhaps not entirely clear. William Hill (Scotland) Ltd refers to a hearing "de novo". The Extra Division in Hamid (2000 SLT 193 at para [10]) reserved its position on the content and extent of any rehearing. There may be a distinction between a hearing de novo and a rehearing. I express no view on it.

[29 ] It is clear that the issue before the Board is the application of section 31. The issue of the interaction between section 31(1) and section 31(2) (a) was discussed before me. It was agreed that the first issue is whether the licence holder is a fit and proper person to be the holder of a licence (section 31 (2) (a)). The second issue is whether, if it is so held, whether it is in the public interest that the licence should be suspended and, if so, for how long. As I have said, determining the issue of whether someone is a fit and proper person to hold a licence involves consideration of whether there is culpability on the part of the licence holder. In the case of a non natural person, in matters such as this, it will obviously involve consideration of the systems in place.

[30 ] If one looks at the reasons given by the Board, and the material before it, it is correct to say that the Board did err in law and that the reasons are not adequate. However, I do add this. In its reasons, the Board expressed its concern about the sale of alcohol to young persons and its prevalence in Fife. It should not be thought that my opinion on the legality of the Board's decision carries with it an implicit criticism of the Board's concern on this issue or the court's indifference thereto. It is as much within judicial knowledge within this sheriffdom as it is within the knowledge of the Board that this is an issue of concern. Nevertheless, both the court and the Board are obliged to act within the constraints of the law as it exists. The issue before the Board is the correct application of section 31 of the 1976 Act. Put another way, the Board should not confuse the desire to prevent underage consumption of alcohol with the assessment of a licence holder's fitness to hold a licence although underage sales may be very relevant to questions of unfitness. I note that the reasons make reference to the exercise of "due diligence". That provision appears in section 67 of the 1976 Act. Where the fitness involves consideration of an underage sale I can see a superficial attraction in referring to section 67 but in my view it is not helpful and may serve only to confuse matters. The issue is whether the licence holder is a fit and proper person to hold a licence.

[31 ] If I return to the dicta in Risky Business Ltd and seek to apply and adapt them here, given that I have held that the Board erred, had they applied the law correctly and assessed the material before them reasonably, could they come to the view that the first and second pursuers were not fit and proper persons to hold a licence? In my view that requires a proper and objective analysis, inter alia, of the systems in place and the facts of the case. It is not my function to substitute my own view of the material before the Board and it would be an error from me to do so (Latif v Motherwell DLB 1994 SLT 414). It seems to me that the Board began from the wrong basis and therefore wrongly assessed the material before it. Armed with the correct basis I do not think I can go as far as to say that there is no material before the Board which might entitle it to reach the view it did.

[32 ] In relation to Mr Skinner's submissions concerning hardening of attitudes; allegations of a political background; the application of a policy; the Board will not look at matters dispassionately, I think there is some force in the argument that there are no averments to support these propositions. In any event, I do not think there is sufficient material on these issues to cause me not to remit for reconsideration. As I said, it seems to me that the Board considered the issues from the wrong starting point. If it starts from the correct basis then I see no reason why it should not be able to deal with matters appropriately and dispassionately.

[33 ] I shall therefore allow the appeal and remit the matters back to the Board for reconsideration of its decision. I was not addressed upon the need for any orders pursuant to section 39 (7) and I make no such direction. That of course is not intended to encourage any delay in the conclusion of further proceedings.

[34 ] In relation to expenses, I shall in due course certify the cause as suitable for the employment of junior counsel. The issues raised and debated before me justify such a course of action. The pursuers are entitled to expenses. The question is whether the letter of 6 July 2007 ought to limit the pursuers' entitlement. I have concluded that, in fairness to both parties, in the light of my reasons, I ought to give them an opportunity to address me on this issue. I shall put the matter out for a hearing on expenses. I do not require the attendance of counsel on that occasion.