Scottish Sheriff Court Decisions

NOTE

By

SHERIFF J.A. BROWN ESQ.,

In Causa

GAVIN FAULDS SCOTT, residing at 2 Halley Court,

Yoker, Glasgow, G13 4DP

PURSUER

Against

THE SECURITY INDUSTRY AUTHORITY,

PO Box 49768, London, WC1V 6WY.

DEFENDER

Court Ref. D2485/09

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This matter called before me as a Summary Application on 25^th September 2009. The Summary Application related to an appeal by the Pursuer against the Defenders decision to suspend the Pursuer's security industry licence in terms of Section 11(1)(c) of the Private Security Industry Act 2001. The Pursuer sought recall and recall ad interim of the suspension of said licence.

Mr Kelly who represented the Pursuer outlined the background of the case to me. He advised that the Defenders were the Regulatory Authority of the Private Security Industry. They had intimated to the Pursuer by way of letter of 8^th September 2009 that the Pursuer's licence was suspended with immediate effect. They had thereafter by letter dated 9^th September 2009 intimated that it was the Authority's decision to revoke the Pursuer's licence. Mr Kelly confirmed that the Pursuer's case was one of a number of cases calling in Court on 25^th September 2009 relating to the suspension of licences whilst further cases were to call in Court on 30^th October 2009 in connection with the revocation of said licences.

Mr Kelly's submission was that it was not permissible under the Private Security Industry Act 2001 for suspension and revocation of the Pursuer's Security Industry Licence to take place at the same time.

Mr Kelly referred me to Section 10 of the Private Security Industry Act and to paragraphs 1, 2 and 3 thereof. He further referred me to Section 7 of said Act and the criteria referred to therein. He further referred me to Section 11(1)(c) and Section 11(6)(b) of the Act. His position was that taking all of these Sections together there was no statutory basis for suspension and revocation proceedings being undertaken at the same time. He pointed particularly to the contradiction between revocation and suspension proceedings in that in terms of Section 11 in that if a licence is revoked then the licence would remain in force during the period of any appeal whereby the Act was silent in respect of the position with suspension during an appeal period.

Mr Kelly referred to the Scottish Industry Authority Licensing criteria contained in a document titled "Get Licensed". He referred to Pages 53 and 54 of the document. He submitted that the document provided no more than guidance to the Court and could not be used to go behind the statutory frame work for suspension or revocation as set out in Section 10 and 11 of the Act. The Court was not bound by the guidelines/criteria as set out in the "Get Licensed" document but was bound by the terms of the Statute. Mr Kelly made reference to that part of the "Get Licensed" document at Page 54 referring to revocation of a "suspended licence". He indicated that such a licence was a hybrid which was not referred to anywhere within the Act itself.

In short Mr Kelly's position was that there was no statutory basis for proceedings in respect of suspension of a licence and revocation of a licence to be able to be run together. He further argued that if there was any contradiction in the statutory regulations these should be determined contra preferentum and therefore in favour of the Pursuer. Mr Kelly's submission was that the suspension of the licence was incompetent and therefore should be recalled.

Mr Kelly's esto argument was that if I was not with him in his principal submission then the suspension should be recalled on the merits. He advised that the Pursuer was in a senior and responsible position with the Company who employed him. His employment was his sole income. The suspension would prevent him working and obtaining income from employment. He referred me to the letter from Strathclyde Police dated 18^th July 2008 which formed the basis of the intelligence upon which the decision to suspend was based. That letter made no reference to the Pursuer being on any intelligence data base. The Pursuer had no previous convictions. The Pursuer could not delegate his position to anyone else as others to whom he might delegate his role were also subject to suspension proceedings. Mr Kelly submitted that the balance of convenience for recall of the suspension rested with the Pursuer.

Mr Kemp for the Defenders opposed Mr Kelly's submissions. Mr Kemp confirmed that the Security Industry Authority had been established by the Private Security Industry Act 2001. The essence of the Act was to protect the public and the public interest. In respect of Section 10 of the Act which deals with revocation and modification of licenses Mr Kemp submitted that on any logical analysis sub-section 1 of Section 10 was permissive not only to give the Authority power to modify but also to revoke any licence. Modification included suspension in terms of sub-section 3. Mr Kemp submitted that suspension and revocation served distinct purposes and were distinct decisions. He submitted suspension was a serious and important step serving the immediate purpose of public protection and allowing protection of the public prior to further procedure. He submitted that such further procedure could involve revocation proceedings. He referred me to the "Get Licensed" document and confirmed that such document had been published under Section 7 and the duty of the Authority referred to therein.

He further referred me to sub-sections 5 and 5(a) of Section 7 and the approval referred to therein of the Secretary of State. He then took me to the "Get Licensed" document and referred to Pages 53 and 54 dealing with revocation and suspension of the licenses. In particular he referred me to the second last paragraph on Page 54 relating to revocation of a suspended licence and submitted that this supported his submission that in certain circumstances suspension and revocation are designed to work together.

He submitted that suspension underpinned the whole procedure to protect the public meantime pending the outcome of revocation proceedings.

He submitted that applying Mr Kelly's interpretation to the Act defeated the whole purpose of the power of suspension. He submitted that the criteria referred to in the "Get Licensed" document had a formal status given that it was based upon a duty in Section 7 of the Act and that I should not adopt a restrictive interpretation of Section 10 in so far as it related to modification or revocation of the licence.

In respect of the merits of the suspension Mr Kemp gave some detail as to the background to the decision to suspend the licence. He confirmed that extensive investigations had been undertaken by Strathclyde Police. He confirmed that serious concerns existed in relation to the operation of the Pursuer's employers and the Pursuer had an important position in the operation of the Company. The powers available to the Authority were there for the protection of the public and in light of the information available the Authority would be acting irresponsibly and in dereliction of their duty if they did not act to protect the public. The Pursuer had an appeal process which he had elected to follow. The Authority were entitled to adopt the procedures which they had elected so to do.

Discussion

The Pursuer in this case seeks recall and recall ad interim of the suspension of his Private Security Industry Licence which has meantime been suspended by the Defenders in terms of Section 10 of the Private Security Industry Act 2001. Section 10 is in the following terms:-

"10. Revocation and Modification of Licenses

(1) The Authority may by notice in writing to the licensee modify or revoke any licence granted to him (including any of the conditions of that licence).

(2) In determining whether or not to modify or revoke a licence the Authority shall apply the criteria for the time being applicable under Section 7.

(3) The modifications that may be made under this Section include one suspending the effect of the licence for such period as the Authority may determine."

I observe that in respect of Section 2 the Authority "shall apply the criteria" under Section 7 in determining whether or not to modify or revoke a licence. Section 7 is in the following terms:-

"7. Licensing Criteria

1. It shall be the duty of the Authority before granting any licenses to prepare and publish a document setting out (a) the criteria which it proposes to apply in determining whether or not to grant a licence; and (b) the criteria which it proposes to apply in exercising its powers under this Act to revoke or modify a licence."

In this case the document prepared and published setting out such criteria particularly in relation to sub-paragraph (b) is the "Get Licensed" document and in particular pages 53 and 54 thereof. Accordingly, it seems to me that the provisions of the "Get Licensed" document fall to be considered as an intrinsic part of the Act as the document has been prepared and published under a statutory duty. To that end the provisions in relation to revoking a licence and suspending a licence fall to be read together along with the provisions of Section 10 and Section 11 of the Act. Page 54 of the "Get Licensed" refers to suspension of a licence being considered "only where we are reasonably satisfied that a clear threat to public safety could exist. It is evident that the suspension of a licence is a step taken in the interests of public safety. The appeal procedures against revocation and suspension are the same in that an appeal may be lodged within 21 days. The significant difference is that under an appeal against revocation the licence will remain in force whilst in an appeal against suspension the licence remains suspended. This is the situation in this case and forms the basis of the complaint given that Section 10 refers to a licence being modified (i.e. suspended) or revoked. It cannot be, however, that the Authority is bound to elect one or the other course of action. It would be incongruous if the Authority were limited in having to choose whether to proceed with suspension or revocation proceedings.In my view to interpret Section 10 subsection 1 in such a way is to give to restrictive an interpretation to the Section having regard to the import of the "Get Licensed" document. I consider that Section 10 subsection 1 refers to " modify or revoke" as possible alternative ways to proceed in dealing with an issue pertaining to a licence. I do not consider that that the section should be interpreted so as to make these alternatives mutually exclusive.

It is evident from the published criteria that it is envisaged that there may well be circumstances such as in this case where it is appropriate from the public safety prospective to immediately suspend a licence and then proceed to revoke it.

Accordingly in respect of the submissions made by Mr Kelly and Mr Kemp in respect of the interpretation of Section 10 I prefer the submissions of Mr Kemp.

On the merits of the application I again prefer the submissions of Mr Kemp. The Pursuer is employed as the General Manager of a Company which has been the subject of an intelligence operation. In particular the letter of 19^th August 2009 refers to the Pursuer's employers allegedly using intimidation tactics to secure sites until new arrival security companies from what there perceived to be their geographical area of business. Such information in my view well entitles the Defenders to take the action they have taken to suspend the Pursuer's licence in the public interest and in my view the balance of convenience rests with the Defenders.

Sheriff J A Brown