Scottish Sheriff Court Decisions

Sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton

 

 

 

Judgement

 

by

 

Sheriff Joyce Powrie, Advocate

 

 

 

Appeal under

Licensing (Scotland) Act 2005

 

in terms of

 

Act of Sederunt (Summary Applications, Statutory Applications and Appeals Etc. Rules)

Amendment (Licensing (Scotland) Act 2005) 2008

 

B1205/08

 

in causa

 

Mrs Sajda Bibi Shafiq

residing at 12 Argyle Wind, Carfin

Appellant

 

against

 

North Lanarkshire Licensing Board

Civic Centre, Windmillhill Street, Motherwell ML1 1AB

Respondents

 

 

 

Act: Mr S Blair, Advocate

 

Alt: Mr P Guidi, Solicitor, North Lanarkshire Council

 

 

 

Hamilton: 23^rd January 2009

The Sheriff, having resumed consideration of the Appeal allows same; Reverses the decision of the Respondents of 4^th July 2008 and Ordains the Respondents to issue the Appellant a premises licence for the premises known as "Handy Store" 99 Stewarton Street, Wishaw in terms of Section 26(1) of the Licensing (Scotland) Act 2005; Finds the cause suitable for the employment of Junior Counsel; Finds the Respondents liable to the Appellant in the expenses of the Appeal as taxed; Allows an account thereof to be given in and when received, remits the same to the Auditor of Court to tax and report.

 

 

Sheriff

 

NOTE

(1) This is an Appeal by way of Stated Case in terms of the Licensing (Scotland) Act 2005 (hereinafter referred to as the 2005 Act) and the Act of Sederunt Etc. 2008 previously referred to. The Appeal is brought against a decision of the Respondents made on 4^th July 2008 to refuse to grant the Appellant a premises licence for the premises known as "Handy Store" 99 Stewarton Street, Wishaw (hereinafter referred to as "the premises").

 

(2) Counsel for the Appellant submitted that his primary motion was that the answers to the questions in the Stated Case should be answered in the affirmative and the decision of the Respondents to refuse to grant the premises licence should be reversed. His secondary motion, which he said was very much his secondary position, was that failing success in the primary motion, the Application should be remitted to the Respondents for a full reconsideration of their decision. Mr Blair advised that it was his understanding that this was the first Appeal under the new 2005 Act. Accordingly, he very helpfully outlined the new law, the background to it being introduced and compared it with the Licensing (Scotland) Act 1976 (hereinafter referred to as "the 1976 Act"). Mr Guidi for the Respondents, did not take any issue whatsoever with what was stated by Mr Blair in this respect. Mr Blair also very helpfully set out his submissions for the Appellant in writing. Whilst he included certain sections of the legislation in full, I do not consider it necessary to set out the full terms thereof as it was agreed that only certain parts were relevant to this Appeal.

 

Submissions on Behalf of the Appellant

Right of Appeal

(3) This is regulated by Section 131 of the 2005 Act. The relevant parts of this section are:-

"Section 131(3) The grounds on which a Licensing Board's decision may be Appealed under this section are -

 

(a) that, in reaching the decision, the Licensing Board -

 

(i) erred in law,

(ii) based their decision on an incorrect material

fact,

(iii) acted contrary to natural justice, or

(iv) exercise their discretion in an unreasonable

manner."

 

 

In the present case it was agreed that only (i) and (iv) were relevant.

 

 

 

(4) Section 131(5) provides:-

"Where the sheriff principal or, as the case may be, the sheriff upholds an appeal against a Licensing Board's decision under this section, the sheriff principal or sheriff may -

 

(a) remit the case back to the Licensing Board for reconsideration of the decision,

(b) reverse the decision, or

(c) make, in substitution for the decision, such other decision as the sheriff

principal or sheriff considers appropriate, being a decision of such nature as

the Licensing Board could have made.

 

 

 

(5) Again it was agreed that only (a) or (b) were appropriate in this case. Counsel for the Appellant submitted that success on any one of the eight grounds of Appeal entitled the Appellant to succeed in the Appeal as a whole. The Respondents' solicitor did not demur from this submission.

 

Legislative Background

(6) It was pointed out that the 2005 Act replaced the 1976 Act, as the 1976 Act had been criticised as lacking a clear objective. The 2005 Act, it was submitted, sought to remedy this by providing a statement of the statutory objectives of licensing. The statutory objectives had to be addressed by Licensing Boards when making a decision under the 2005 Act to grant, suspend or revoke a premises licence.

 

(7) Counsel for the Appellant referred to the "long title" of the 2005 Act and the preamble wherein it is stated:-

 

"An Act of the Scottish Parliament to make provision for regulating the sale of

alcohol, and for regulating licensed premises and other premises on which

alcohol is sold; and for connected purposes".

 

 

 

(8) It was thus submitted that the Act was not crime prevention legislation. This argument was expanded at a later stage and I shall comment on this submission later in my judgement. This is particularly true standing the terms of Section 4 of the 2005 Act which provides:-

 

"4(1) For the purposes of this Act, the licensing objectives are -

(a) preventing crime and disorder,

(b) securing public safety,

(c) preventing public nuisance,

(d) protecting and improving public health, and

(e) protecting children from harm.

 

(2) In this Act references to the "crime prevention objective" are references to the licensing objective mentioned in subsection (1)(a)".

 

Section 4(1)(a) was the relevant objective in this case.

 

 

 

(9) In terms of the 2005 Act a "premises licence" in relation to any premises is required for authorising the sale of alcohol on the premises. Each such premises must have a premises licence holder and in the present case the Appellant applied to be the holder in terms of Section 18 of the 2005 Act. There are also requirements for a premises manager and personal licences which are not subject to this Appeal. It was also pointed out that the 2005 Act does not come into effect until 1^st September 2009 but transitional requirements were required to enable existing holders of licences under the 1976 Act to convert their licences to the new style "premises licences". This will continue over approximately eighteen months and in the meantime existing licence holders under the 1976 Act will continue to trade under their existing licence. The Appellant already held a licence under the 1976 Act since 10^th June 2005 which will continue until September 2009.

 

Application for a Premises Licence and Notification thereof

(10) Section 20 of the 2005 Act provides the relevant documentation which must be submitted when applying for a premises licence. This had been complied with by the Appellant. Section 21 sets out the relevant notification requirements and is in the following terms:-

 

"Section 21. Notification of Application

(1) Where a Licensing Board receives a premises licence application, the Board

must give notice of the application to -

 

(a) each person having a notifiable interest in neighbouring land,

(b) any community council within whose area the premises are situated,

(c) the council within whose area the premises are situated (except

where the council is the applicant),

(d) the appropriate chief constable, (my emphasis) and

(e) the enforcing authority within the meaning of section 61 of the Fire

(Scotland) Act 2005 (asp 5) in respect of the premises.

 

(2) A notice under subsection (1) must be accompanied by a copy of the Application.

 

(3) The appropriate chief constable must, within 21 days of the date of receipt of a

notice under subsection (1)(d), respond to the notice by giving the Licensing

Board -

 

(a) one or other of the notices mentioned in subsection (4), and

(b) a report detailing -

 

(i) all cases of antisocial behaviour identified within the

relevant period by constables as having taken place on,

or in the vicinity of, the premises, and

(ii) all complaints or other representations made within the

relevant period to constables concerning antisocial behaviour

on, or in the vicinity of, the premises.

 

(4) These notices are -

 

(a) a notice stating that neither -

 

(i) the applicant, nor

(ii) in the cases where the applicant is neither an individual nor a

council, or where the application is in respect of premises which

are to be used wholly or mainly for the purposes of a club, any

connected person,

 

has been convicted of any relevant offence or foreign offence, or

 

(b) a notice specifying any convictions of -

 

(i) the applicant, or

(ii) in any of the cases mentioned in paragraph (a)(ii), any connected

person,

 

for a relevant offence or a foreign offence.

 

(5) Where the appropriate chief constable -

 

(a) proposes to give a notice under subsection (4)(b), and

(b) considers that, having regard to any conviction to be specified in the notice, it is necessary for the purposes of the crime prevention objective that the application be refused,

 

the chief constable may include in the notice a recommendation to that effect.

 

(6) In this section -

 

"relevant period" means the period of one year ending with the date on which the appropriate chief constable receives notice under subsection (1)(d)."

 

 

 

(11) In the present case the appropriate Chief Constable was notified. In terms of Section 21 the Chief Constable is obliged to provide within 21 days a notice reporting a relevant conviction. This is not discretionary. The Chief Constable duly reported that the Appellant had been convicted of a contravention of the Licensing (Scotland) Act 1976 Sections 67 and 68(1) and (7). This was a relevant offence in terms of the above legislation. However, the Chief Constable did not include a recommendation that it was necessary for the purposes of the crime prevention objective that the Application be refused. The Respondents accepted that the lack of such a recommendation by the Chief Constable was a relevant and material consideration. It was also agreed that no other objections were lodged to the Application.

 

Determination of Premises Licence Application

(12) This is determined by Section 23 of the 2005 Act. I consider it appropriate to only state the parts of that section which are relevant to this Appeal.

 

"Section 23

(4) The Board must, in considering and determining the application, consider

whether any of the grounds for refusal applies and -

 

(a) in none of them applies, the Board must grant the application, or

(b) if any of them applies, the Board must refuse the application.

 

(5) The grounds for refusal are -

 

(c) that the Licensing Board considers that the granting of the application

would be inconsistent with one or more of the licensing objectives .....

 

(6) In considering, for the purposes of the ground for refusal specified in subsection

(5)(c), whether the granting of the application would be inconsistent -

 

(a) with the crime prevention objective, the Licensing Board must, in

particular, take into account -

 

(i) any conviction notice of which is given by the appropriate chief

constable under subsection (4)(b) of section 21,

(ii) any recommendation of the chief constable included in the notice

under subsection (5) of that section, and

(b) with any licensing objective, the Licensing Board must take into account any report made by the appropriate chief constable under subsection (3)(b) of section 21.

 

(8) Where the Licensing Board refuses the Application -

 

(a) the Board must specify the ground for refusal, and

(b) if the ground for refusal is that specified in subsection (5)(c), the

Board must specify the licensing objective or objectives in question."

 

 

 

(13) In the present case, the licensing objective referred to in Section 23(8)(b) was the crime prevention objective. It was submitted that the sole basis for the refusal of the Application in this case was that the licensing objective of the prevention of crime and disorder was engaged and that the Respondents considered that it would be inconsistent with that objective for the Application to be granted. It was pointed out that Section 23 particularly states that the Licensing Board must take into account any relevant conviction and recommendation of the Chief Constable as set out in Section 23. It was also pointed out that the Act states that the statement from the Chief Constable provides that it is "necessary" for the Application to be refused and not that it was merely desirable or preferable.

 

(14) Counsel for the Appellant thereafter considered the terms of Section 17 of the 1976 Act and Section 23 of the 2005 Act regarding the grounds for refusal of an Application. He submitted that the 1976 Act, whereby an Application could be refused on the ground that an applicant was not a fit and proper person to hold a licence, was a much more elastic concept than that set out in the tighter structure of Section 23 of the 2005 Act. It was also submitted that the Licensing Board under the 1976 Act, did not have to address statutory licensing objectives in reaching their decision. Under the 1976 Act the Chief Constable did not have any statutory role in giving recommendations based on crime prevention objectives which he now has. I was also referred to the powers that the Board had to suspend an existing licence. Again, I do not consider it necessary to go into these provisions in detail in this case.

 

(15) Counsel for the Appellant thereafter went on to consider the terms of the 2005 Act regarding determination and reasoning as provided for in Section 51 of the 2005 Act. This had been duly complied with in this case according to Counsel for the Appellant.

 

(16) With regard to the Appellant's conviction, it was accepted that she pled guilty at Hamilton Sheriff Court on 23^rd April 2008 of a contravention of the Licensing (Scotland) Act 1976 Section 68(1) and (7). This was a relevant conviction for the purposes of the Licensing (Relevant Convictions) (Scotland) Regulations 2007. This was an offence committed vicariously by the Appellant. She was not on the premises at the time of the offence. Her husband sold the alcohol to a person under the age of eighteen and was fined £200. Sentence in respect of the Appellant was originally deferred for a period of six months. She was thereafter admonished.

 

(17) The Appellant did not seek legal representation before tendering a plea of guilty to the charge. Counsel for the Appellant accepted that she had pled guilty to the offence and that he could not go behind this conviction.

 

(18) It was pointed out that Section 67(2) of the 1976 Act provides a defence, namely that the offence occurred without the licence holder's knowledge or connivance or that the licence holder exercised all due diligence to prevent its occurrence. It was accepted on behalf of the Respondents that the former did not apply given that the Appellant was not present when the offence took place. However, it had to be accepted that her plea of guilty implied that the Appellant did not exercise all due diligence to prevent its occurrence.

 

(19) I was thereafter referred to the relevant legislation which brought in "Test Purchasing" in terms of the 2005 Act and the Licensing (Scotland) Act 2005 (Commencement Number 2 and Transitional Provisions) Order 2006. This allowed police to send in persons under the age of eighteen years of age to purchase alcohol which would otherwise be illegal. The Appellant was charged under such a test scheme. It was also pointed out that the new offence under Section 102(1), which will replace the offence under Section 68(1) of the 1976 Act, does not have a system of vicarious responsibility. Criminal liability will fall purely on the shoulders of the person who actually makes the sale and not upon the licence holder as may presently occur under the 1976 Act.

 

(20) Counsel for the Appellant thereafter turned to look at several cases which dealt with the general principles involved in Licensing Law Appeals. It was submitted that the grounds of Appeal under the 2005 Act were the same as the grounds of Appeal found in the 1976 Act and accordingly the cases were still relevant. The solicitor for the Respondents did not demur from this submission.

 

(21) With regard to the question of adequacy of reasoning in the Respondents' Statement of Reasons which was subject to Appeal, I was referred to the cases of Wordie Property Co v Secretary of State for Scotland, 1984 SLT 345 and Mirza v City of Glasgow Licensing Board 1996 SC 450 and Leisure Inns (UK) Limited v Perth and Kinross Licensing Board 1991 SC 224.

 

(22) So far as the grounds of Appeal related to the unreasonable exercise of discretion by the Respondents in reaching their decision I was referred to the case of Latif v Motherwell District Licensing Board, 1994 SLT 414.

 

(23) So far as the standard of due diligence expected of a licence holder I was referred to the case of Cambridgeshire County Council v Kama [2008] 39 SLLP 26 and also Sohal v City of Glasgow Licensing Board [1999] 12 SLLP 12.

 

(24) It was submitted that the case of Wordie Property, although it related to a planning case, had been endorsed as applicable in licensing law following the case of Mirza. Both cases, it was submitted, showed that if the Statement of Reasons were inadequate this amounted to an error in law.

 

(25) With regard to the "unreasonable exercise of discretion" test, it was submitted that the approach in Latif remained appropriate. It was submitted that the test to be applied in whether or not that there had been an unreasonable exercise of discretion was not the high judicial review test, often called the Wednesbury test, of a decision only being unreasonable if it can be shown that the decision was so (my emphasis) unreasonable that no reasonable decision maker could have reached it. It was submitted that the test was simply whether the decision was unreasonable. It was particularly pointed out that the case of Latif made it clear that it was not for the Sheriff to substitute his own views. The test of reasonableness remains an objective one. As stated therein "The appropriate test, as we have indicated, is to consider whether "a reasonable board" rather than a "reasonable person" would have adopted the course taken by the Appellants in this case".

 

(26) With regard to the cases referred to in regard to the standard expected of a licence holder it was submitted that as stated in Sohal, "The criminal law does not impose a duty of insurance and it would be odd if licensing law imposed a greater duty". It was submitted that there was no obligation of "insurance". The only obligation upon the Appellant was to take reasonable steps to prevent under age sale. The above arguments were expanded upon in course of detailed submissions in respect of each ground of Appeal.

 

(27) The grounds of Appeal are somewhat lengthy and I have set them out in full in my judgement as they formed the basis of the submissions on behalf of the Appellant. For the sake of completeness I have attached a copy of the Statement of Reasons issued on behalf of Respondents on 17^th July 2008. I do not intend to set them out in full in my judgement as the terms thereof are well known to the "informed reader". The relevant parts of them were in any event referred to in submissions. It was accepted that the summary of the submissions made and the decision stated therein was accurate. It was purely the reasons for the decision that were attacked. It was also accepted on behalf of the Appellant, that the note by the Respondents' attached to the Stated Case was broadly in the same terms as the Statement of Reasons. It was also accepted by Counsel for the Appellant that certain of the grounds overlapped in respect of his submissions.

 

(28) The first two questions in the Stated Case related to the first ground of Appeal. On behalf of the Appellant, I was invited to answer both questions in the affirmative.

 

(29) Ground of Appeal One submitted that the Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. The Licensing Board equated the existence of the relative conviction of the Appellant for a single contravention of the said provisions of the Licensing (Scotland) Act 1976 as being sufficient for the Licensing Board to reach the conclusion that the grant of the application would be inconsistent with the crime prevention objective as defined by Sections 4(1)(a) and 4(2) of the Act. The existence of a relevant conviction is not in itself a lawful basis for a refusal of an Application on the basis of the crime prevention objective. The Licensing Board failed to address why the relevant conviction in the particular circumstances of this case made it necessary for the promotion of the crime prevention objective that the Application should be refused. The Licensing Board erred in law in failing to address the correct question.

 

(30) It was pointed out that the obligation in Section 23(6)(a)(i) is to "take account of any relevant conviction notice". Thus such a notice is therefore potentially relevant to the real question which the Board must address, namely whether the Licensing Board "considers that the granting of the application would be inconsistent with one or more of the licensing objectives".

 

(31) Reference was once more made to the long title of the 2005 Act and it was submitted that the Act was not concerned with the elimination or suppression of crime. The purpose of the Act is the regulation of the sale of alcohol. The licensing objectives, it was submitted, establish regulatory objectives, the purpose of which is to provide for the regulation of the sale of alcohol. It was submitted that they are only relevant insofar as the grant of a particular application for a premises licence would lead to an inconsistency with the crime prevention objective. It was further submitted that had Parliament considered that the existence of a relevant offence was a bar to the holding of a premises licence, then it would have specifically provided that this was a basis for refusing an application.

 

(32) Further, it was evident that if Parliament had considered that the occurrence of the relevant criminal offence in itself meant that the crime prevention objective would be breached by the grant of an application, then the Respondents would have been given no discretion in the matter. Such an approach, it was submitted, would have been in line with the view that one purpose of the 2005 Act was a suppression of crime rather than the regulation of the trade in alcohol. It was submitted that it was clear that Parliament had considered that there may well be circumstances in which a relevant offence or offences had occurred but the Board, in exercise of its judgement came to the view that the occurrence of an offence (or offences), was such that the grant of the application would be inconsistent with the crime prevention objections.

 

(33) It was submitted that there were three stages for the Board to consider in this decision:-

 

1. The existence of a relevant conviction;

2. Consideration by the Licensing Board as to whether that conviction engages the crime prevention objective; and

 

3. Whether the grant of a particular application would be inconsistent with the crime prevention objective.

 

 

 

(34) It was submitted that even under the 1976 Act where a criminal conviction arose in the context of whether an Applicant for a licence was a fit and proper person to hold a licence, it had never been held in Scots Law that a conviction in itself was a sufficient basis for a decision to refuse the grant of a licence or suspend a licence.

 

(35) It was submitted that the key issue in this ground of Appeal is the test of consistency or inconsistency. In this respect I was referred to the dictionary meanings of said words. It was submitted that the test was not whether the Respondents considered that a licensing objective would be breached by the grant of an application but whether the Respondents considered that the grant of the application would be inconsistent with a licensing objective. It was submitted that the Respondents placed emphasis on the existence of the relevant conviction but did not address why the existence of this conviction led to an inconsistency with the crime prevention objective.

 

(36) Counsel submitted that the grant of any application for the sale of alcohol must have a "possibility" that there might be inconsistency with a licensing objective. However, it was submitted that if this approach was to be taken then no premises licences could ever be issued. A mere possibility cannot be sufficient to engage a licensing objective, much less can it support the conclusion that even if an objective is engaged, that the grant would lead to inconsistency with the licensing objective. It was submitted that the use of the word "consistent" in the legislation is indicative of a high test which has to be met before there can be a breach of the licensing objective by the grant of the application. It was submitted once more that the word "consistent" is used in the legislation in its ordinary sense and should be given its ordinary meaning.

 

(37) It was submitted that the Respondents did not address the correct test in refusing the licence. At its highest, the Respondents only addressed the existence of the relevant conviction. They did not address the separate and material part of the test of consistency with the crime prevention objective, or if they did do so, it was not clear that they had done so.

 

(38) It was submitted that the Respondents referred to the overriding factor in the application of the test of whether the grant of the applicant being inconsistent with the crime prevention objective as being that the "offence was a serious one and recent". It was submitted that the reasons for the refusal of the licence related to the characterisation of the offence itself in terms of how serious it was and when it occurred. That, it was submitted, did not address the quite separate issue of whether the grant would be inconsistent with the licensing objective. It was submitted that stating the offence was in the view of the Board serious, when it was not obviously so, and recent, which it obviously was but in the context of another wise good record not of immediate relevance, in no way addresses the issue of consistency or inconsistency with the licensing objective in question.

 

(39) The Appellant's fallback position was esto the Respondents did address the correct test, the Statement of Reasons does not set out their reasons in an intelligible way. It was submitted that the Statement of Reasons did not explain in any meaningful way why the grant of the application would be inconsistent with the crime prevention objective. The informed reader was thus left in the dark as to why the grant of the licence would be inconsistent with said objective.

 

(40) The third question posed in the Stated Case related to the second Ground of Appeal which stated that the Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. Against the background of a single failure of a test purchase, an otherwise good record with both the police and the Licensing Board of the Appellant holding an off sales licence under the Licensing (Scotland) Act 1976 and the clear willingness of the Appellant to improve her own training and that of her staff and of shop procedures relating to identification, the Licensing Board failed to consider the likelihood of recurrence of the circumstances giving rise to the relevant conviction. The likelihood of recurrence of the circumstances giving rise to the conviction was relevant as to whether the crime prevention objective was (a) engaged, and (b) required the application to be refused. The Licensing Board failed to address these considerations and so erred in law.

 

(41) In elaborating upon this ground of Appeal, it was submitted that the purpose of the crime prevention objective was not to punish those who had acted in a way which was criminal, but was to prevent a recurrence of the circumstances leading to that criminal conduct. It was submitted that the word "prevention" is significant and should be given its ordinary meaning. In the context of one offence, a question must arise as to the likelihood of the recurrence of that offence given the circumstances of the case as a whole. It was thus submitted that it was relevant to that assessment any other conduct which suggested that the offence was likely to recur and also conduct which demonstrated that there was a reduced risk that recurrence would take place. It was submitted that the mere possibility of a recurrence of such conduct was not sufficient to justify the refusal of the licence.

 

(42) It was suggested that Parliament must have considered that one way of preventing further criminal conduct and thereby guaranteeing that it would not occur again in the future would have been to make provision whereby the existence of a relevant offence would per se have prevented an Applicant from obtaining a premises licence. However the policy of the legislation was quite different in that the Respondents have a discretion which they must exercise reasonably in coming to the view that the crime prevention objective could not be consistently operated along side the application if granted.

 

(43) It was submitted that in this case, the Respondents had failed to address at all the question of likelihood of the recurrence which was a relevant matter of law. This was relevant to whether the crime prevention objective was engaged at all and secondly even if it was, whether it required the application to be refused. Thus it was submitted the Respondents focussed solely on the one incident having occurred which in their view was serious and recent and without any assessment of the likelihood of recurrence and therefore as to whether the issue of crime prevention even arose.

 

(44) It was submitted that this was not a case where it was self evident that there must be some realistic likelihood of recurrence of such an offence. We were not dealing with a series of offences from which a strong inference of disregard for the law could be inferred leading to a reasonable inference that there was a likelihood that such an offence could occur again in the future. There was no material before the Respondents to suggest that in the past the Appellant had been anything other than a responsible licence holder. Further, since incident in question the Appellant and her husband had taken steps to improve their training and identification procedures. They had also passed their qualifications as personal licence holders.

 

(45) It was also submitted that the 2005 Act recognises that the Chief Constable has a role to play in providing information to the Respondents and in particular whether he objects on crime prevention grounds. It was significant that the Chief Constable did not recommend refusal as being necessary on crime prevention grounds. This, it was submitted, was a relevant and material consideration as was accepted on behalf of the Respondents. However, it was submitted that the Respondents did not address in their Statement of Reasons, the lack of any suggestion from the Chief Constable that crime prevention required the application to be refused. It was submitted that the Chief Constable was in a good position to assess if the Appellant, being a licence holder, was likely to pose a problem with regard to crime prevention. It was suggested that he could assess if the relevant conviction was an isolated incident or indicative of a possible problem, which would justify refusal of the licence.

 

(46) Question 4 related to ground 3 of Appeal which stated that the Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. The Licensing Board referred in the Statement of Reasons to licence holders having a responsibility to "ensure that appropriate mechanisms are in place" to prevent the sale of alcohol to under aged persons. A licence holder is under no such duty of insurance. The Licensing Board considered the circumstances of the present case against the background of there being a duty in licensing law terms to ensure that no sales of alcohol to under aged persons could take place. In holding that the Appellant had failed to ensure that no such sale could have occurred the Licensing Board addressed the wrong test et separatim took into account an irrelevant consideration in the assessment of the circumstances of the case, the Licensing Board thereby erred in law.

 

(47) I was referred to the case of Sohal v City of Glasgow Licensing Board 1999 12 SLLP 12 where the issue of due diligence and the liability of a licensing holder was considered therein it was stated at page 28:-

 

"The criminal law does not impose a duty of insurance and it would be odd if licensing law imposed a greater duty".

 

 

 

(48) Thus it was submitted that there was no obligation of insurance. The only obligation upon a licence holder was to take reasonable steps to prevent under age sales. It was submitted that the Respondents erred in approaching matters on the footing that a licence holder has a responsibility "to ensure that appropriate mechanisms are in place" to prevent the sale of alcohol to under age persons. The Board thus applied a higher test than even the criminal law imposes in their assessment of the seriousness of the offence. It was submitted that it was plain from the Board's reasoning that they reached the view that this was a serious offence upon their view that licence holders were under such a duty of insurance. The Respondents thus erred in law it was submitted.

 

(49) It was submitted that the perceived severity of the offence was relevant to the Respondents in their assessment of whether the application should be refused in that they refer to it as being an "overriding factor" in their decision that the crime prevention objective required the application to be refused. It was pointed out that the only failure in this case was that the Appellant may have in one respect not recognised that her husband required additional training in requesting identification and refusing the transaction. Further, the Appellant did not know or connive in this offence. The Respondents thus erred in considering that there was ongoing duty of insurance on the part of the Appellant whereas she only had duty to take reasonable steps in terms of the criminal law.

 

(50) Having approached matters from the point of view of a duty of insurance and a failure to meet that duty in the past, it was submitted that the Respondents misdirected themselves on that duty in the future. It was submitted that the Respondents having approached the matter upon the possibility that because such a failure had happened once that it "might" happen again in the future was not sufficient. It was submitted that the mere possibility of there being a further occurrence is not relevant when there is no duty of insurance against recurrence, only a duty that reasonable steps must be taken.

 

(51) Question 5 of the Stated Case related to Ground of Appeal number 4 which was in the following terms:-

 

"The Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. The Licensing Board proceeded on the basis that because the conviction had arisen from a test purchase carried out under Section 105 of the Act that was a relevant consideration in the determination of whether the application should be refused. The fact that the conviction arose from the test purchase operation was irrelevant to the decision the Licensing Board had to make. In taking that consideration into account the Licensing Board erred in law".

 

 

 

(52) Again it was stated that the issue in this case was whether there was a relevant conviction which engaged the crime prevention objective and which would have made the grant of the application inconsistent with that objective. It was submitted that the Respondents considered the offence was more serious given that it occurred in the context of test purchasing. The Respondents had referred to this test purchase failure and purported obligation on the part of the Appellant to be "extra vigilant" because of the publicity surrounding test purchasing. It was stated that it was not clear from the Statement of Reasons what publicity there had been in this respect but in any event this was irrelevant. It was submitted that there was no obligation upon the Appellant to be "extra vigilant" and that the 2005 Act only placed a duty of care upon the Appellant to take reasonable care. Thus the Respondents took into account a consideration which was legally irrelevant and thereby erred in law.

 

(53) It was pointed out that the 2005/2006 Legislation made it lawful which would otherwise be unlawful under Section 68(2) of the 1976 Act, namely that a person under eighteen shall not buy or attempt to buy alcoholic liquor in licensed premises, ie. it allows for test purchasing by the Chief Constable asking someone under the age of eighteen to attempt to buy alcohol in relevant licensed premises. However, Section 105 of the 2005 Act does not represent a change in the substantive criminal law insofar as liability of the licence holder is concerned. The penalties available for a breach of Section 68(1) are not increased because the offence took place in the context of a test purchase and does not impose any greater liability on a licence holder. It was also pointed out that a breach of Section 68(1) in the context of a failure of a test purchase is not given prominence in the list of relevant offences listed in the regulations which defines what is a relevant offence. It was also pointed out that the scope of defences available under the 1976 Act is not altered by the introduction of test purchasing. Thus test purchasing does not change the seriousness of the underlying criminal offence it was submitted. It was subject to the same penalties as before.

 

(54) Again it was submitted that the Chief Constable did not consider that the circumstances of this particular offence were so serious simply because they arose in the context of test purchasing that the application should be refused on crime prevention grounds. It was also submitted that the proposition stated by the Respondents that the offence is more serious because the young person must have looked under eighteen was irrelevant given that this was a prerequisite to the offence. In the whole circumstances it was submitted that the reasons for the Respondents holding that the fact that the offence took place in the context of a test purchasing operation made it more serious had not been made clear by the Respondents. In any event the reference by the Respondents in their reasons as to the test purchasing scheme having been publicised was irrelevant as to the seriousness of the offence. It was submitted that absent any publicity, the system operated as a matter of law and was thereby deemed to be of public notoriety. In conclusion, the submission on behalf of the Appellant was that test purchasing does not impose any high degree of vigilance than that of being able to show that reasonable steps had been taken to avoid the occurrence of the offence.

 

(55) Question 6 related to Ground of Appeal number 5 which was in the following terms:-

 

"(5) The Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. It failed to have regard to a relevant consideration. The Chief Constable did not, in providing the Licensing Board with a notice of relevant conviction for the Appellant in terms of Section 21 of the Act go on to recommend that the application should be refused as being necessary to secure the crime prevention objectives. He was entitled to do so in terms of Section 21(5)(b). The absence of such a recommendation was a material consideration. The Licensing Board failed to consider the absence of such a recommendation. Esto, it did consider that consideration (which is not known and not admitted) it is not clear from the Statement of Reasons provided that it did so or if it did, why the absence of such a recommendation was not material to the reasoning of the Licensing Board in the particular circumstances of the case".

 

 

 

(56) In support of this ground of Appeal, it was pointed out that the Chief Constable had a statutory power to recommend to the Respondents that the application for a premises licence be refused on the ground that the grant of the application would be inconsistent with the crime prevention objective. It was submitted that the Chief Constable would no doubt have done so if he considered that it was "necessary" for the crime prevention objective to be met for the Respondents to do so. It was pointed out that the Respondents "noted" in the note appended to the Stated Case that the absence of a recommendation from the Chief Constable is a relevant and material consideration.

 

(57) As previously submitted, it was suggested that the Chief Constable had particular expertise in the assessment of whether an offence is isolated or whether it represents an indication that the management practices in licensed premises are such that the offence is likely to occur. It was submitted that this has to be the basis upon which the Chief Constable, and quite distinct from any other objectors, has been given specific powers under the 2005 Act to recommend refusal as being necessary on crime prevention grounds. It was thus submitted that it was striking that in this case the Chief Constable did not recommend refusal on crime prevention grounds.

 

(58) Whilst it was recognised that the Respondents were not bound by the assessment of the Chief Constable one way or the other, equally the absence of a recommendation from the Chief Constable to refuse the application on crime prevention grounds must be a material and relevant consideration in the overall assessment of whether the crime prevention objective would be breached if the application was granted. The Respondents accepted that this recommendation (or lack of it) is material and relevant.

 

(59) The Chief Constable did not say that it was "necessary" for the purpose of that objective that the application be refused. It was submitted that the use of the word "necessary" imports the view that there must be a material of sufficient seriousness, quantity and quality available before Parliament expects the Chief Constable to consider that the crime prevention objective requires refusal of the grant of the licence.

 

(60) It was submitted that it was beside the point to say that the Respondents did not respond to the grounds of Appeal and that their reasons were irrelevant when they stated:-

 

"As stated in the reasons the Respondents accepted that this was a first test purchase failure but the Respondents noted that the Chief Constable felt it sufficiently serious to refer the matter to the Procurator Fiscal for consideration of prosecution and of course a conviction resulted".

 

 

 

(61) It was submitted that this was a matter of a criminal process. Further, it was submitted that the relevant issue is whether the Chief Constable considered that for the quite distinct purpose of the regulation of the sale of alcohol in the premises - a licensing law and not the criminal law matter, the application should be refused on crime prevention grounds.

 

(62) It was submitted that it was wholly inadequate to merely say that the Respondents knew that the Chief Constable did not object to the application. What was relevant is what the Respondents made of that lack of objection. The informed reader was simply left in the dark as to whether the Respondents considered the significant lack of objection given the particular expertise of the Chief Constable in the assessment of whether crime prevention considerations arose in this case. It was submitted that this case was similar to that of Leisure Inns (supra) where the informed reader was left in the dark as to why the Licensing Board had made a decision which did not concur with the assessments of a relevant statutory official, in the foregoing case being the Planning Authorities, and in the instant case, the Chief Constable.

 

(63) Question 7 referred to Ground of Appeal 6 which was in the following terms:-

 

"The Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. The Licensing Board left out of account that if granted the premises licence would only come into effect on 1 September 2009 after the end of the transitional period referred to in the Order. Accordingly there was no immediate risk or prospect of the crime prevention objective being breached by the grant of the licence. The Licensing Board failed to consider whether at the point the licence would in fact come into effect that the crime prevention objective would be breached by the granting of the application. The Licensing Board thereby erred in law".

 

 

 

(64) It was pointed out that the application was made in the context of the transitional arrangement. It was submitted that the prospect of the crime prevention objective being breached by the grant in July 2008 of a premises licence which would not have effect until 1^st September 2009 was entirely remote. In the intervening period, and thereafter, the relevant legislation provided for proceedings which could culminate in the suspension or revocation of the licence.

 

(65) Question 8 of the stated case referred to Ground of Appeal number 7 which was in the following terms:-

 

"The Licensing Board erred in law contrary to Section 131(3)(a)(i) of the Act. The Licensing Board failed to provide adequate or intelligent reasons for their decision. In particular the Licensing Board failed to provide adequate or intelligent reasons such that the informed reader could understand why it reach the view that the grant of the application would be inconsistent with the crime prevention objective. The Licensing Board failed to properly explain why they considered that the sale of alcohol in the circumstances of this case was "particularly serious" or why there was "manifest irresponsibility". The Board failed to explain why this incident showed a "total lack of responsible management" or why there was such impact on the objection that the grant of the application would be inconsistent with the crime prevention objective. The Board failed to explain why the lack of previous adverse record before the Board was not material to their assessment that grant of the application would be inconsistent with the crime prevention objection".

 

 

 

(66) It was submitted that the Respondents had made very strong findings as to the responsibility of the Appellant. It was clear therefore that these findings went to the assessment of the Respondents as to how serious the relevant offence was. It was thus submitted that such very strong findings required to backed by adequate factual material. It was submitted the court of Appeal must be satisfied that in the particular circumstances of the case that the Licensing Board had not exaggerated the weight to be attached to the relevant conviction. Accordingly findings on the relative seriousness of a conviction must, like any other material facts, be supported by adequate reasoning. It was submitted that in the present case the factual material does not provide reasonable support for the findings made by the Respondents. Further, the Board's reasoning does not lead the informed reader to real and substantial doubt as to why the Respondents reached the conclusions they did. It was pointed out that the Appellant's responsibility in this case was entirely vicarious. Further, it was an isolated offence which took place in the context of a record which was otherwise good from an existing licence holder. There had been no recurrence of such an offence. In this respect I was referred to the case of Muir v Chief Constable of Edinburgh 1961 SLT (Sh Ct) 41 which was commended for the test upon which one should look at the assessment of the seriousness or otherwise of the criminal conviction.

 

(67) It was submitted that there was no suggestion in this case that the Appellant intended to breach the terms of the 1976 Act. There was no evidence that she had given instructions to her assistant to sell alcohol to persons under the age of eighteen. Further, it was submitted that had there been a total lack of responsible management, this would have been brought to the attention of the Respondents long before the date of the hearing. Thus, it was submitted that the proper inference that the Respondents should have drawn from the material before them was that this was an isolated lapse on behalf of the Appellant. It was further submitted that given that sentence had been deferred by the Sheriff upon the Appellant, this offence lay at the less serious end of the spectrum in terms of the criminal law of licensing. It was also submitted that the lack of any recommendation on behalf of the Chief Constable to refuse the application on crime prevention grounds also supported the view that the offence was not a serious one and did not support the conclusion of the Respondents that she had shown a manifest lack of responsibility.

 

(68) Again it was pointed out that the Chief Constable had made no complaint and had not sought suspension of the licence under the 1976 Act. Further it was pointed out that the Appellant had failed only one test purchase and that it was clear that it was the practice to carry out more than one test purchase on the premises and that there had been no further failure. Also further training had been undertaken by the Appellant and her assistant.

 

(69) It was submitted that all the above were relevant considerations for the Respondents to address. It was submitted that the Respondents simply "noted" the considerations but did not adequately express why, against these considerations, the existence of the single conviction based on vicarious liability was to be given more weight in the assessment of the needs of crime prevention objective such that the application had to be refused. Thus merely "noting" these considerations without more was, in the circumstances of this case, "inadequate reasoning". Thus the informed reader could not be left in no real and substantial doubt as to why the decision was reached.

 

(70) Question 9 of the stated case refers to Ground 8 of the Appeal which is in the following terms:-

 

"The Licensing Board exercised their discretion in an unreasonable manner contrary to Section 131(3)(a)(iv) of the Act. The premises for which the application relates had been the subject of an off sales licence held by the Appellant under the Licensing (Scotland) Act 1976. The Appellant had operated that licence without complaint. This was the only incident which caused the Appellant to be brought to the attention of the Licensing Board. The Appellant was not on the premises when the incident occurred. The sale was at the hand of her assistant. The criminal law liability of the Appellant was entirely vicarious. She and her assistant pled guilty at the earliest opportunity. Sentence on the Appellant was deferred by the Sheriff to 24^th October 2008. The assistant was only fined £200. The Chief Constable did not recommend that the application be refused on the basis of the crime prevention objective. The Chief Constable did not seek an order from the Licensing Board for suspension of the existing off sales licence for the premises in terms of Section 31 of the Licensing (Scotland) Act 1976 as he was entitled to do. It was explained to the Licensing Board that the Appellant and the assistant who had sold the alcohol had undergone relevant training. The Appellant was issued with a Scottish Certificate for Personal Licence Holders on 20^th February 2008 and her assistant the same qualification on 9^th April 2008. That is a relevant qualification for the purposes of holding a premises licence under the Act. The assistant had undergone training to make him more confident in challenging a person suspected to be underage. The Appellant had taken steps to improve identification procedures since the incident giving rise to the relevant conviction. There was no reasonable basis for concluding that the circumstances giving rise to the conviction would occur in the future. Against that whole background it was unreasonable of the Licensing Board to consider that the grant of the application would be inconsistent with the crime prevention objective".

 

 

 

(71) Not surprisingly, standing the lengthy narrative in the ground of Appeal, Counsel had little to add. It was submitted that this case was a plain example of a Licensing Board exercising its discretionary power in a way which was unreasonable. It was submitted that no reasonable Licensing Board could, on the material before it, come to the conclusion that the grant of the application would be inconsistent with the crime prevention objective.

 

Disposal of the Case

(72) Section 131(5) of the 2005 Act provides that on upholding an Appeal the court can reverse the decision of the Respondents or remit the case to them for reconsideration. It was submitted that this section is in substance in the same terms as Section 39(6) of the 1976 Act.

 

(73) With regard to the question of whether a case should be remitted to the Licensing Board for reconsideration or whether the court should reverse the decision of the Respondents, I was referred to the case of Alldays Stores Limited, Central Fife Divisional Licensing Board [2007] 37 SLLP 34.

 

(74) It was submitted that there was no test that there must be compelling considerations before the Sheriff can decide to reverse to decision of a Licensing Board. It was submitted that it was matter which was for the discretion of the Sheriff. It was however submitted that in this case that there were very strong grounds for reversing the decision of the Respondents and for ordaining them to grant the application and to issue the licence. These were:-

 

1. There was a lack of adequate material upon which the Respondents could reasonably come to the view that the objective was engaged or if it was engaged, it would inconsistent with that objective to grant the application. There was no likelihood of recurrence and therefore the crime prevention objective was not engaged and even if engaged there was no reasonable basis for the view that the grant of the application would be inconsistent with the objective. No reasonable Licensing Board could in the circumstances of this case consider that the application should be refused. Thus there was no point in remitting the case back for reconsideration.

 

2. The case betrays multiple and serious errors of law on the part of the Respondents including errors as to the correct test to be applied and the reasons given to support material conclusions. Further it was submitted that assessment of the Respondents of the facts and the inferences to be drawn from them is wholly unreasonable.

 

3. There is a clear risk of hardened attitudes by the Respondents. It was submitted that language used by them is very strong in contrast to the conduct of the Appellant in question. Thus it was submitted there must be grave doubt as to whether the Respondents could approach this case with sufficient detachment.

 

4. It was submitted that there is a very strong feeling of the Respondents wanting to punish the Appellant and also of "sending out a message" to others.

 

 

 

(75) It was submitted that expenses should follow success in this case. It was also submitted that this was a case in which I should certify it as being suitable for the employment of Junior Counsel. In support of this argument it was pointed out that the loss of the licence was an important matter for his client. Further, licensing law was generally a specialised field and such cases had frequently been certified under the 1976 Act. Further, this was understood to be the first Appeal under the new law. Finally, it was submitted that although the Respondents were represented by a solicitor, he was also an expert in licensing law.

 

Submissions on Behalf of the Respondents

(76) Mr Guidi on behalf of the Respondents agreed that Counsel for the Appellant had properly set out the relevant provisions of the legislation and he took no issue with this.

 

(77) He submitted that the emphasis put on the inadequacy of the Statement of Reasons by Counsel for the Appellant was unjustified. He submitted that Counsel had placed undue weight on the case of Wordie. He referred to a licensing authority case where the adequacy of the Statement of Reasons was considered namely Noble v City of Glasgow District Council 1995 SLT (Notes) 1315.

 

(78) Therein it is stated at paragraph I:-

 

"Nor is it necessary that the letter containing the reasons should canvass each piece of evidence or each assertion and say specifically whether or not it has been accepted or what effect, if any, it had had in the deliberations of the licensing authority."

 

 

 

(79) On behalf of the Respondents it was agreed that the case of Wordie affirmed that the Statement of Reasons must make the reasons for the decision clear to the informed writer, but it did not provide that a line by line scrutiny of the statement was the appropriate approach. It was submitted having regard to the Grounds of Appeal that such a line by line approach had been taken on behalf of the Appellant and that this was not appropriate. It was pointed out that the Grounds of Appeal were detailed particularly with regard to the attack made upon the Board's approach to dealing with the fact that there was no objection by the Chief Constable to the Application and the fact that the licence would not come into effect until September 2009. Again with respect to these matters I was referred to the case of Nobel wherein it was stated:-

 

"Held, that a licensing authority's written reasons for their decision on an Application did not require to canvass each piece of evidence or each assertion put to the authority, and that if an authority stated that they had had regard to the evidence and productions, it was not possible for the court to go behind such a statement, unless something else made it clear that the authority had not had regard to such material".

 

 

 

(80) I was also referred to the case of Sohal wherein the Sheriff held that the delay factor raised in the Appeal was one which the Board was obliged to consider. He also held that while the Statement of Reasons was silent on this matter, it could not be said to have been ignored in view of the general assertion that the Board had taken account of the whole submissions made to them. It was submitted that this reasoning should be applied in the instant case given that the Statement of Reasons said that the Board took account of "all" factors in the case in reaching their decision. The Statement of Reasons also stated that it took account of the measures which had been put in place by the Appellant since the date of conviction. Thus, I should not interfere with the Board's decision.

 

(81) I was referred to the terms of Section 23(6)(a) of the 2005 Act which stated that the Board must take account of a relevant conviction. It was not disputed that the Appellant's conviction was a relevant conviction. Accordingly, it was submitted that there was a strong direction by the legislation for the Board to take account of this conviction.

 

(82) It was pointed out that the crime prevention objection was one of the five objectives which underpinned the regime for granting or refusing an Application for a licence. On behalf of the Respondents it was accepted that if the Board had simply said that they refused the licence because the Appellant had been convicted of a relevant offence that this approach would have been flawed. It was accepted that it had to be the nature of the conviction which would justify the Respondents refusing the grant of the licence.

 

(83) Turning to the nature of the conviction, Mr Guidi pointed out that the Appellant's employee should have asked for identification from the purchaser. He stated that the police had purposely selected a sixteen year old so the onus was on the employee to be suspicious and seek appropriate identification from the purchaser. It was also pointed out that the applicant had pled guilty to the charge against her and thus the Board could construe that this amounted to an admission of fault on her part, where the law provided a possible defence. It was accepted that in this case where there was vicarious liability on the part of the Appellant, and the Respondents had proceeded upon the basis that there had been no knowledge or connivance on behalf of the Appellant. However, in her plea of guilty, the Appellant had obviously accepted that the other part of the statutory defence had not been made out by her, namely that all due diligence had not been exercised by her. In this respect I was referred to the case of Sohal wherein it was stated at page 22:-

 

"Of course the Board is not a criminal court and I accept that it is not bound by a decision of a Procurator Fiscal not to prosecute or await the result of a prosecution. But in the absence of a criminal conviction the Board must not shut its eyes to the possibility that the defence of due diligence might be capable of being made out on the facts presented to it".

 

 

 

(84) However, it was submitted that this did not apply in the present case given that it was overridden by a plea of guilty by the Appellant. Accordingly, it could be inferred that fault on the part of the Appellant could reasonably be inferred by the Board ie. that she had not exercised due diligence.

 

(85) Mr Guidi thereafter submitted that the Respondents were entitled to hold that the crime prevention objective was engaged standing that the relevant conviction was a recent conviction. It was submitted that it was a question for the Respondents to decide whether or not a conviction was a serious conviction. It was conceded that this may be open to a different interpretation if the conviction was an old one. He also conceded that it could not automatically be said that the relevant conviction in this case would be regarded as a serious conviction by all Licensing Boards. However, he submitted that the decision taken by the Respondents was within the reasonable parameters of their discretion.

 

(86) It was submitted that the problem of underage drinking had been highlighted by the terms of the 2005 Act which had led to the provision for test purchasing being taken as a serious issue. Mr Guidi submitted that the starting point for the argument as to whether or not this was a "serious" conviction was that it was accepted that the Appellant's conviction was a relevant conviction. In considering whether or not the conviction could be considered as serious he referred to the case of Hughes v Hamilton District Council 1991 628. At page 632 it was stated:-

 

"Once there is relevant material before a licensing authority the question as to the weight to be attached to that material and the significance of any other balancing factors must be for the authority to assess. The Sheriff describes the record as "trivial". We can well understand his view that it was not particularly serious, especially in the context of the allegation he made that others were operating life speaker chimes in the very areas where he was trying to trade. Nonetheless the question as to the weight that fell to be attached to all these matters was one for the committee to address. In our opinion, it cannot possibly be said that no reasonable committee could have arrived at the view at which this committee arrived, and we do not consider that it was open to the Sheriff to conclude that the committee exercised its discretion in an unreasonable manner".

 

 

 

(87) It was submitted that this was the approach I should adopt in the instant case. I was also referred to the case of Ranachan v Renfrew District Council 1991 SLT 625 in support of the above argument that I could not substitute my own view for that of the Licensing Board. In that case:-

 

"Held, that it was for the authority to determine whether the Applicant's defences bore upon his fitness to hold a licence; that it could not be said that their decision was so unreasonable that no reasonable authority could have reached it; and that, in holding to the contrary the Sheriff had erred by substituting his view of the matter for that of the Respondents; and Appeal allowed and Sheriff's interlocutor recalled".

 

 

 

(88) Under reference to the case of Ranachan I was also referred to the passages of the Judgement which it was submitted set out what was required to be contained in a Statement of Reasons by the Respondent. At page 628 thereof it was stated:-

 

"It being accepted that they did not take into account the irrelevant material, or leave out of account relevant material and that they made no error in law, it was in our opinion, sufficient for them to state the reasons for refusal in terms that made the reason intelligible".

 

 

 

(89) The opinion of the court thereafter went on to state:-

 

 

 

"In our view, it is not necessary for a "statement of reasons" to condescend in detail upon the precise thinking which lies behind the reasons actually given; indeed, there being several members of the subcommittee, it is clear that different members might have attached different weight and significance to the various considerations before the subcommittee. In our opinion, the Statement of Reasons in this instance is both intelligible and sufficient".

 

 

 

(90) It was submitted that this applied in the case before me.

 

 

 

(91) I was also referred to the case of Muir v Chief Constable of Edinburgh 1961 SLT (Sh Ct) 41 where it was held that when none of the offences took place during the conduct of his business as a bookmaker the convictions were insufficient material to justify the Application for a bookmaker's permit. It was pointed out that in the present case the relevant conviction was in course of the business which related to the Application for the licence.

 

(92) Mr Guidi thereafter turned to the question of the test of "irrationality". Under reference to the case of Latif he submitted that before I could decide that the Respondents had erred in their decision I would have to hold that their decision was one that no reasonable Board could have reached. He particularly referred me to page 414 of said decision wherein it was stated:-

 

"Held, that the Sheriff could only interfere with the decision of the Board on the ground in Section 39(4)(d) if he concluded that the course followed by the Board was one that no reasonable Board, having taken into account all relevant circumstances, could have adopted, the test of "irrationality" being inappropriate in this context, and in the present case the Sheriff had erred in substituting his own judgement for that of the Board; and Appeal allowed".

 

 

 

(93) It was submitted that given the Licensing Board was entitled to find that the recent conviction was a relevant conviction they were also entitled to find that it was a serious conviction. It was submitted that Counsel for the Appellant erred in asserting that the Board could not find the conviction to be more serious because it resulted from a test purchase and the legislation did not make such an offence more serious. It was submitted on behalf of the Respondents, that the Board could take account of it being a test purchase and thus more serious because of the publicity that had surrounded it. Mr Guidi advised that the police had written to every licensee regarding the test purchasing scheme and thus it was transparent. Thus it was submitted the Board could take this into account.

 

(94) Turning to the position of the Chief Constable, it was acknowledged on behalf of the Respondents that the Chief Constable did not seek to block the Application for the licence and did not seek to have the current licence under the 1976 Act suspended or revoked. However, it was submitted that the Board was not bound by the Chief Constable's views. It was agreed that the Chief Constable's views were pertinent but were not the overriding factor in the Board's decision. It was submitted that the Board was entitled to make their own decision on a reasonable basis. It was also pointed out that the Chief Constable had referred the matter to the Procurator Fiscal and that there was a conviction and thus this was a relevant factor.

 

(95) Turning to the Ground of Appeal regarding the licence not coming into effect until September 2009 and Counsel for the Appellant's submission that there was no "immediate" prospect of the crime prevention objective being engaged, it was submitted that the 2005 Act did not at any time use the word "immediate". On behalf of the Respondents it was submitted that they were entitled to come to the conclusion they did and conclude that the crime prevention objective was engaged.

 

(96) I should say at this point that there was some discussion between Counsel for the Appellant and the solicitor for the Respondents and myself regarding the problem of what is to be perceived as "the future". As I understood it, all licences held under the 1976 Act required to be converted to the new style of licences under the 2005 Act. This is being phased in over an eighteen month period as clearly all licences could not be considered at one time. Parties were agreed that there was nothing in the legislation which showed that different tests should be applied depending on the time at which Applications for renewals were made during the transitional period.

 

(97) In writing this Judgement it has since occurred to me, that although the point was not raised in the course of the Appeal before me, a similar point must arise in respect of whether there was a "recent conviction" depending upon what time the Application for the renewal of the licence was heard by the Licensing Board.

 

(98) I was thereafter referred to the unreported case of Scott Catering & Offshore Services Limited and Allan McLean Thoars v The City of Aberdeen District Licensing Board a 1987 decision wherein it is stated at page 6:-

 

"It was perfectly open to them (as a Licensing Board) in my view to accept the statement about young persons coming, but to reject that part of it that confined them to family groups. Unless this discretion to accept and reject parts of a case is left to them then a Licensing Board would be wholly bound by the nature and colour of the Applicant's presentation. Such a principle would be unthinkable in my estimation. The Defenders are entitled to draw conclusions different from the Applicant."

 

 

 

(99) Thus it was submitted on behalf of the Respondents, that the Boards have certain inherent discretions. They can be selective in what they think is pertinent and what they consider is not pertinent. They can attach more weight to some matters than others. In conclusion, it was submitted that it could not be said that the approach taken by the Respondents in the instant case was sacrosanct. However, it was submitted that they had been thorough and had taken into account all the facts presented to them and that their decision was not so unreasonable that it amounted to an error in law.

 

(100) I was also referred to the last two sentences of the Statement of Reasons wherein it is stated:-

 

"The fact that details of the conviction were not intimated to the Board played no part in their decision. The Board accepted what the licence holder suggested that she thought the Board would be otherwise notified about this".

 

 

 

(101) It was submitted that this showed that the Board was in fact being fair to the Appellant. They could have said that the further contravention of the Act, by not advising of the conviction, was indicative of a further contravention of the 2005 Act and that this was not in her favour. They had not adopted this approach.

 

(102) Turning to the final disposal of the case, it was agreed that the Respondents could not see any argument against the proposition that expenses should follow success. With regard to the certification of the case being suitable for the employment of Junior Counsel, it was submitted that this was a question for me. It was however accepted that in the past sanction had been granted under the 1976 Act and that this was new law which may further justify such sanction. With regard to whether or not the case should be remitted to the Board in the event of the Appellant being successful, Mr Guidi had no comment on that matter and considered that it was a matter for me to determine. He adhered to his primary submission that it could not be said that the Respondents exercised its discretion in an unreasonable manner contrary to Section 131(3)(a)(iv) of the Act.

 

Submissions in Reply on behalf of the Appellant

(103) Counsel for the Appellant referred to the case of Noble and pointed out that this was merely a note and not a full copy of the Judgement. I was particularly referred to paragraph I/J wherein it is stated:-

 

"When we look at the Licensing Authority's letter containing the reasons for the decision in this case, we observe that it is expressly stated that the committee had regard to the submissions, to the statements, and to the productions which the Appellants and Applicants had lodged. It is true that they were dismissive of some of the material upon grounds which we do not find impressive but we do not find in the letter any sound basis for holding that they acted contrary to natural justice or exercise their discretion in a manner properly described as "unreasonable"".

 

 

 

(104) It was submitted however that this was not applicable in the instant case, in that the Respondents did not give any reasons upon which they dismissed material which was relevant. Counsel thereafter by and large reiterated his previous submissions. In particular, however, he submitted that the Board had erred in law in applying the new test regarding the grant or refusal of a licence ie. whether it was inconsistent with the crime prevention objectives. It was submitted that the Statement of Reasons indicated that the Board thought that it was a mere possibility, at its highest, that the granting of a licence would be inconsistent with this objective and that this was thus an error in law. It was submitted that the Board did not say in the Statement of Reasons that they considered the likelihood of recurrence and they should have done so if they were looking at the crime prevention objective. It was submitted that in any case, a Board could say that one conviction and a history of problems although not resulting in criminal proceedings, could justify them refusing to renew a licence as they would in that case have addressed the question adequately of recurrence. However, it was submitted that in this case the Board had not adequately addressed this question and thus there was an error in law.

 

(105) Once more it was submitted that the fact that the Chief Constable referred the matter to the Procurator Fiscal was not relevant and that what the Board had to consider was whether or not it was relevant that he had not made any recommendation in respect to the Application for the new licence. It was again reiterated that taking into account the fact that the conviction resulted from a test purchase was an irrelevant matter. It was submitted that this did not make it a "severe" conviction and thus the Board had erred in their approach. Again it was submitted that the Board had failed to take into account the further training undertaken by the Appellant and her employee. It was suggested that merely stating that the Board had "noted" certain matters did not equate to showing that they had taken them into account as shown in the cases of Noble, Wordie and Mirza. It was submitted that from the Statement of Reasons given by the Respondents, it was not clear why the Authority had discounted such relevant matters in reaching their decision to refuse the licence.

 

DECISION

(106) Under the 1976 Act an Appeal against the decision of the Licensing Board was taken by way of a Summary Application. However, under the terms of the 2005 Act, the Appeal is by way of Stated Case which in many ways is a different form of Appeal. I understand that this may be the first case under the 2005 Act to be appealed and thus those responsible for drafting the Grounds of Appeal and the Stated Case may have some difficulty in adjusting to what is required.

 

(107) The Grounds of Appeal are extensive and in my view referred to matters of evidence which could more appropriately have been referred to at the hearing on the Appeal and did not require to be referred to in the Grounds of Appeal. I would particularly refer to Ground of Appeal 8 and the reference ad longum to the qualification issued to the Appellant and her assistant in relation to their further training. This has led to the further difficulty that although in theory there are nine questions in law posed by the Respondents the first two relate to only the first Ground of Appeal on behalf of the Appellant. Other questions in fact pose more than one question therein. Again this is particularly true in respect of question 8 which in fact poses four separate questions therein. I therefore find it very difficult to see how I can be asked by parties to simply answer one question in the affirmative or the negative considering that there can be conflicting answers to parts of the question, finally resulting in a direct answer to one question.

 

(108) As previously stated, I had some difficulty, as did parties, in what should be perceived as "a recent conviction" and "the future". Standing that the licenses required to be converted over a period of time, I considered that the Licensing Board can only consider such questions with the relevant date being the date of the Licensing Board Hearing. Thus, I considered that in the present case the Respondents were entitled to hold the conviction was a "recent conviction" and this was not disputed by Counsel. Similarly, I consider that the Respondents were entitled to consider the question of whether or not the crime prevention objective was engaged, as if the licence was to come into immediate effect. It appears to me that the Legislator has not adequately set out guidance to the Licensing Boards when determining such questions. It appears to me that there could be particular anomalies when deciding renewal applications depending on which time during the transition period applications are heard.

 

(109) I was also concerned that when I was considering my judgement that parties had never referred me to the actual terms of the findings in fact as set out in the Stated Case. There were only four findings in fact prior to the relevant finding in fact in law. Contrary to other Appeals by way of Stated Case the lack of findings in fact struck me as somewhat surprising and contrary to the normal way of stating a case. Thus, I invited parties to attend for a further hearing before me on 16^th January 2008.

 

(110) At that time the solicitor for the Respondents submitted that there were adequate findings in fact and that I could proceed upon them together with the note and form of Statement of Reasons attached thereto standing the terms of the legislation. I was particularly referred to Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Licensing (Scotland) Act 2005) 2008. Therein it is stated inter alia -

 

"Adjustment of stated case

3.34.3 (1) The Licensing Board must, within 28 days of the lodging of a note of Appeal, issue a draft case containing -

 

(a) findings in fact and law or, where appropriate, a narrative of the proceedings before them;

 

(b) appropriate questions of law;

 

(c) a note stating the reasons for their decision with particular reference to the grounds of Appeal; ....."

 

 

 

(111) It was thus submitted on behalf of the Respondents that they had complied with the terms of said section and that although there were limited numbers of findings in fact, it was appropriate in this particular case for a narrative of the proceedings to satisfy the terms of this section. It was submitted that in this case where no evidence had been led, it was extremely difficult for the Respondents to state any further findings in fact. Counsel for the Appellant did not demur from this suggestion. Both parties were agreed that their arguments were in no way compromised by the form in which the Stated Case was drafted.

 

(112) However, both parties were agreed that there was some considerable concern both from Appellants and Respondents, as to whether the new form of Appeal by way of Stated Case was the most appropriate form for determining such Appeals. It was accepted that there were some problems with the prior form of Appeal but that considerable problems were being raised by Appeal being taken by way of Stated Case. I was advised that this resulted in extensive Grounds of Appeal being lodged to try and cover every eventuality as the legislation did not envisage Appellants trying to amend the Grounds of Appeal until it came before a Sheriff or Sheriff Principal. Further, Clerks of the Licensing Board were having to try and précis very long Grounds of Appeal into relevant questions in law which was in some cases extremely difficult to do. In short, both parties seemed to suggest that the present form of Appeal was cumbersome and perhaps not the best way of dealing with licensing Appeals where there is seldom any evidence led. It was also suggested that where there was a dispute as to the facts or an unexpected matter raised in the note, it was very difficult for parties to sort this out prior to a hearing before a Sheriff or a Sheriff Principal.

 

(113) I was advised that Sheriff Principal Taylor in Glasgow Sheriff Court had raised some concerns regarding whether or not the new form of Appeal was particularly suitable for dealing with licensing Appeals and that he may have raised this was other Sheriffs Principal with a view to looking at whether or not the legislation should be amended. I understand that this has been looked at by other legal bodies within Scotland. For my own part, I must say that I do not find this new form of Appeal to be particularly satisfactory given the above comments. It appeared to me that the appeal hearing before me proceeded by and large in the same way as a Licensing Appeal always did, and mainly meant an attack upon the Statement of Reasons, but resulted in many largely overlapping questions of law to be answered.

 

(114) I propose to answer the many questions posed in the Stated Case and to thereafter give my reasons therefore standing that there is a certain degree of interrelation between the Grounds of Appeal and my decision.

 

Question in Law 1

(115) "1. Did the Respondents equate the existence of the relevant conviction of the Appellant for a single contravention of the Licensing (Scotland) Act 1976 as being sufficient to refuse the Application on the crime prevention objective ground? Did they err in law in this respect?"

 

(116) I would answer both questions in the negative. It is quite clear from the Statement of Reasons and the note attached to the Stated Case that the Respondents in their consideration of matter did not equate the existence of the relevant conviction of the Appellant as being sufficient for them to reach the conclusion that the grant of the application would be inconsistent with the crime prevention objective as defined by the legislation. The solicitor for the Respondents conceded that this would not be a sufficient reason to refuse the Application.

 

Question in Law 2

(117) "2. On the facts presented did the Respondents fail to address why the relevant conviction in the particular circumstances of this case made it necessary for the Application to be refused so as to meet the crime prevention objective? Did they err in law in this respect?"

 

(118) I answer both these questions in the affirmative for the reasons set out below.

 

(119) Question in Law 3 was in the following terms:-

 

"3. Was the likelihood of recurrence of the circumstances giving rise to the conviction relevant as to whether the crime prevention was (a) engaged and (b) was such that it requires the Application to be refused? Did the Respondents fail to address these considerations and so err in law?"

 

 

 

(120) I would answer part (a) in the affirmative and part (b) in the negative. I would answer the remainder of the question in the affirmative.

 

(121) Question in Law 4 was in the following terms:-

 

"4. Did the Respondents in holding that the Appellant had failed to ensure that such a sale of alcohol to underage persons could not happen address the wrong test et separatim take into account an irrelevant consideration in their assessment of the circumstances of this case and thereby err in law?"

 

 

 

(122) I would answer this question in the affirmative.

 

 

 

(123) Question in Law 5 was in the following terms:-

 

 

 

"5. Was the fact that the conviction arose from a test purchase operation irrelevant to the decision the Respondents had to make and in taking that consideration into account did the Respondents err in law?"

 

 

 

(124) I would answer that question in the affirmative.

 

 

 

(125) Question in Law 6 was in the following terms:-

 

 

 

"6. Did the Respondents fail to consider the absence of a recommendation from a Chief Constable that the Application be refused as necessary to secure the crime prevention objective and did the Respondents fail to make it clear why (the absence of such a recommendation) was not material to their reasoning in the circumstances of this case?"

 

 

 

(126) Again, I would answer what could be construed as two questions in the affirmative.

 

 

 

(127) Question in Law 7 was in the following terms:-

 

 

 

"7. Did the Respondents err in law in not considering that if a premises licence was granted it would only come into effect on 1^st September 2009 and accordingly there was no immediate risk for prospect of the crime prevention objective being breached by the grant of the licence?"

 

 

 

(128) I would answer the foregoing question in the negative for reasons to be given hereafter.

 

 

 

(129) Question in Law 8 was in the following terms:-

 

 

 

"8. Did the Respondents fail to provide adequate or intelligent reasons such that the informed reader could understand why they reached the view that the grant of the application would be inconsistent with the crime prevention objective? separatim Did the Respondents fail to properly explain in their Statement of Reasons how the sale of alcohol in the circumstances was "particularly serious" or why there was a "manifest irresponsibility" on the part of the Appellant? Did the Respondents fail to explain why the incident showed a "total lack of responsible management"? separatim Did the Respondents fail to explain why the lack of a previous adverse record was not material to their assessment and that granting the Application against the background of one conviction with a previous good history would be inconsistent with the crime prevention objective?"

 

 

 

(130) I would answer all the questions raised therein in the affirmative.

 

 

 

(131) Question in Law 9 was in the following terms:-

 

 

 

"9. Was there no reasonable basis for the Respondents concluding that the circumstances giving rise to a conviction would occur in the future? Against the whole background was it unreasonable for the Respondents to consider that the grant of the application would be inconsistent with the crime prevention objective?"

 

 

 

(132) Again, I would answer the questions in the affirmative for reasons to be given hereafter.

 

 

 

(133) I considered that the Respondents' submissions regarding the test to be applied by me in deciding the adequacy of the Statement of Reasons by the Respondents and the relevant cases set out the law properly. I agree that the cases show that I cannot substitute my own opinion for the Respondents decision and that I could not go behind the Statement of Reasons unless something else made it clear that the Authority had not had regard to relevant material. I must say at the outset that I consider that there was a relevant conviction and this was not disputed on behalf of the Appellant. I also agree with the submission on behalf of the Respondents that the case of Sohal did not apply given that the Appellant had pled guilty to a relevant charge.

 

(134) It appeared to me that the main reason for the Respondents refusing the licence was that they regarded the relevant conviction as a "serious" conviction standing that it was a "test purchase".

 

(135) In this case I consider that in looking at the individual Grounds of Appeal that it is important to look at the wording of certain parts of the Statement of Reasons by the Respondents which was reiterated in the Stated Case. At paragraph 10a. it is stated for example:-

 

"1. The Board noted that it was a test purchase failure and the Board felt that publicity had been given about the proposed test operations and that the licence holder should have made both herself and her staff extra vigilant about this. (my emphasis)

 

2. The Board, as a regulating authority, felt licensees have a responsibility to manage their premises in an appropriate manner and the Board in essence felt the facts presented to them showed a "manifest irresponsibility") on the licence holder's part. (my emphasis)

 

3. The fact that someone under age eighteen ..... was able to acquire alcohol without being questioned in any way showed a "total lack of responsible management" on the part of the licence holder. (my emphasis)

 

4. The overriding fact for the Board ..... was the fact that the conviction was in their view a serious one and was recent. (my emphasis)

 

 

 

(136) It was submitted on behalf of the Appellant that this was very strong language for refusing a licence in comparison to the nature of the relevant conviction. It was also submitted that the other parts of the Statement of Reasons, which related to matters which were favourable to the Appellant, were merely stated as being "carefully noted" or "noted" or "The Board felt" ie. more understated and not elaborated upon. I should say that I did not consider that the Respondents' decision not to find that the Appellant's failure to intimate the conviction to them played any part in their decision was relevant at all in this case. I did not find that this had any bearing on their fairness or otherwise in their ultimate decision.

 

(137) It appears to me that Ground of Appeal 8 and Question in Law 9 ultimately focus the matters raised in this Appeal. I am of the opinion that having regard to the earlier Grounds of Appeal which I found to be substantiated, that this was a plain example of the Respondent Licensing Board exercising its discretionary power in a way which is unreasonable. I therefore concluded that no reasonable Licensing Board could, on the material before it, have come to the conclusion that this was a case where the grant of the application would be inconsistent with the crime prevention objective. I agreed with the Appellant's submissions that the test was as per the case of Latif, namely "the test is simply whether the decision was unreasonable". I also agreed with Counsel for the Appellant's submissions regarding the standard expected of a licence holder and I had regard to the case of Sohal where it was stated:-

 

"The criminal law does not impose a duty of insurance and it would be odd if licensing law imposed a greater duty".

 

 

 

(138) Thus, I agree with Counsel for the Appellant's submissions that there is no obligation of insurance on behalf of the Appellant. Her only obligation is to take reasonable steps to prevent underage sales. Thus, I consider that the Respondents erred in law in reaching their decision.

 

(139) Turning to question 5 of the Stated Case, again I consider that Counsel for the Appellant's argument was well founded. I considered that the Respondents erred in law in holding that the fact that the relevant conviction arose from a test purchase made the offence more serious. There is nothing in the legislation to support this assertion. Indeed I consider the fact that the penalties for such a contravention are the same supports the submission.

 

(140) Turning to question 6 of the Stated Case, again I answered the questions posed therein in the affirmative. I considered that the Respondents erred in law for the reasons outlined on behalf of the Appellant. I did not consider it sufficient that the Respondents stated that they "noted that the Chief Constable felt it sufficiently serious to refer the matter to the Procurator Fiscal for consideration of prosecution and of course a conviction resulted".

 

(141) The Respondents, in my opinion, erred in law in this approach standing that where there was such an alleged contravention of the Act, the police were bound to refer the matter to the Procurator Fiscal for consideration of prosecution. The seriousness of such a matter does not come into the decision as to whether or not it should be referred to the Procurator Fiscal. Thus, I consider that the Respondents erred in law. I agree with the submissions on behalf of the Appellant that no sufficient reasons are given by the Respondents as to why they did not consider such an absence of a recommendation to refuse the Application was not material to the reasoning of the Licensing Board. I accept that the Respondents were entitled to make their own assessment and were not bound by any lack of objection by the Chief Constable, but I consider it material that they did not set out any reasons why they did not consider such a lack of objection to be material.

 

(142) Turning to Question 7, as previously stated I answered this question in the negative. Standing that licenses are being renewed over a relatively long period of time, I considered that the Board could only look at matters as if the licence did come into effect immediately.

 

(143) With regard Question 8 again I accepted the submissions on behalf of the Appellant and considered that the Respondents erred in law.

 

(144) I also accepted the submissions on behalf of the Appellant in respect of Question in Law 9. I concluded that the Respondents erred in law in that no reasonable Licensing Board could, on the material before it, come to the conclusion that the grant of the application would be inconsistent with the crime prevention objective. This Ground of Appeal appeared to me to "sweep up" many of the other Grounds of Appeal, the majority of which I upheld.

 

(145) In the whole circumstances I considered that it was appropriate to reverse the decision of the Respondents and Ordain them to issue the Appellant with a premises licence. I could see no point in remitting the matter back to the Board for the reasons outlined on behalf of the Appellant. In addition, no reasons were outlined on behalf of the Respondents as to why this would be an appropriate course to take in this case. This Appeal has related to matters of law rather than matters of fact, and accordingly I consider it to be appropriate that I make the decision rather than remit the matter back to the Respondents.

 

(146) I have found the Respondents liable to the Appellant in the expenses of the Appeal. I consider that the normal rule that expenses should follow success should apply in this case. I also certified the case as suitable for the employment of Junior Counsel standing that this was an Appeal involving a fairly specialised field of law and consideration of new legislation, upon which there was no authority.

 

(147) As previously stated, I consider that although the previous legislation regarding Appeal procedure may have been flawed, the new law whereby an Appeal is by way of Stated Case, is not without its difficulties also. Having heard submissions on behalf of both parties, it does appear to me that the new form of Appeal perhaps requires to be looked at again by relevant authorities or alternatively, some guidance issued as to the form such Appeals and Stated Cases should take.