SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

 

B591/12 and B593/12

 

JUDGMENT

 

by

 

SHERIFF PRINCIPAL DEREK C W PYLE

 

in causa

 

in the first place

 

ASK ENTERTAINMENT PUB LIMITED, having a place of business at 150 Union Street, Aberdeen

Pursuers

against

 

ABERDEEN LICENSING BOARD, having its headquarters at Business Hub 6 LlS, Marischal College, Aberdeen AB10 1AB

Defenders

 

and in the second place

 

ASK ENTERTAINMENT NIGHTCLUB LIMITED, having a place of business at 1/3 Diamond Street, Aberdeen

Pursuers

 

against

 

ABERDEEN LICENSING BOARD, having its headquarters at Business Hub 6 LlS, Marischal College, Aberdeen AB10 1AB

Defenders

 

Introduction

These are two summary applications being appeals against decisions of the Aberdeen Licensing Board all in terms of Section 131 of the Licensing (Scotland) Act 2005. While each appeal relates to different premises, it was agreed that they should be dealt with together given that the facts which formed the basis of the respective decisions by the defenders are the same on the principal issue and the proceedings before the defenders were treated as one and the same in both cases.

 

Ask Entertainment Pub Limited held the premises' licence for the Society Bar and Restaurant at 150 Union Street, Aberdeen. Ask Entertainment Nightclub Limited held the premises' licence for Aurum Nightclub, which is situated at the same address - above the Society Bar and Restaurant.

 

Before the defenders, much time was taken up with the evidence which supported the link between both licensed premises and a Kirk Harrison. The defenders decided that Mr Harrison was a connected person, in terms of Section 147(3)(b)(ii) of the Act. That finding was not disputed on appeal. That was important given that most of the other evidence related to allegations of actings by Mr Harrison in relation to known drug dealers in Aberdeen.

 

The starting point for a discussion of the other issues raised at the hearing before the defenders is the application by letter dated 19 July 2012 by Grampian Police to the depute clerk of the defenders. The letter raised two distinct issues which came to be discussed before the defenders and also were debated before me. The first related to the associations of Harrison, while the second related to the conduct of door stewards. I deal with each in turn

 

Harrison's Associations - the Police Evidence

In the letter the police advised that the Scottish Crime and Drug Enforcement Agency in October 2009 had commenced an operation, known as Operation Abanda, which was an intelligence-led investigation into a serious organised crime group concerned in the supply of Class A drugs in the north east of Scotland. The police alleged that the group was headed by a Simon Carter who had a previous conviction in 2003 for being concerned in the supply of diamorphine and cocaine, for which he had received a custodial sentence. A Jason Lindsay was alleged to be his second in command in Aberdeen. He also had six sub-dealers in the Aberdeen area, one of whom was Dominic Anderson who in July 2010 was detained in Aberdeen by the police, having travelled from the West Midlands with a courier, Sanjhot Rhoad, who had been found in possession of a substantial quantity of diamorphine. It was alleged that Jason Lindsay was instrumental in organising the delivery of that diamorphine. He and Rhoad, together with a Craig Lawrence, were charged and prosecuted with offences under the Misuse of Drugs Act 1971. The result of those prosecutions was not known to the defenders.

 

During the operation the police identified an alleged link between the group and properties owned by Kirk Harrison. In particular, between February and March 2010, surveillance police officers saw Simon Carter frequent a property in Queen's Crescent, Aberdeen, which was owned by Harrison and which, it was alleged, was the home of a Christian Gordon, who has previous convictions for being concerned in the supply of controlled drugs. A further male, Michel Nguena, also frequented the property. Between April and May 2010 surveillance police officers noted that Carter and a Mohammed Sadek were living at 72 Queen's Crescent, Aberdeen, a property owned by Harrison. The officers also noted that Jason Lindsay frequented the property. In May 2010, the officers observed Carter leaving the property and disposing of two bin bags which it was later found contained traces of cannabis and diamorphine, as well as a plastic glove later identified as having the DNA of Sadek. Also in May 2010, a drug search warrant was executed at 95 Portland Street, Aberdeen - again owned by Harrison. The result of the search was that Sadek was convicted of offences under the Misuse of Drugs Act and sentenced to 18 months imprisonment.

 

In respect of all three properties Harrison produced leases which provided details of tenants which were not sufficiently detailed to be traced.

 

In May 2010 the surveillance officers also saw Harrison attend the home address of a known female associate of the group. Lawrence was also present at the address. Later the same day Harrison committed an assault for which he was subsequently convicted.

 

The letter then described two meetings - entitled "criminal meetings" - at other licensed premises in Union Street and within the underground car park at Queen's Crescent. The first was in May 2010 and was said to be a meeting between Harrison and Lindsay, Anderson, Lawrence and a Tuhal Miah, during which mention was made of a drugs search warrant and an instruction was given by Harrison to Miah to collect rent and that if it was not paid "all bets are off". Miah was subsequently convicted of offences under the Misuse of Drugs Act and sentenced to a period of imprisonment. The second was again in May 2010 when Harrison was seen inspecting a motor car in the presence of Carter and Lindsay. The owner of the car later gave a statement to the police that the car had been taken from him in settlement of a drug debt.

 

The conclusion of the police, particularly in the light of statements obtained from a Roger Mills and an Othman Reggane, was that Harrison was a facilitator who assisted the group and individual criminals to carry out criminal activities. Moreover, Harrison was seen in June 2010 to be a passenger in a motor car being driven by a Louis McLean who was convicted in 2012 for supplying controlled drugs and sentenced to imprisonment.

 

The police then turned to the links between both premises and Harrison's alleged association with the group or others involved in the supply of controlled drugs in Aberdeen:

1.     In September 2010 Nguena was seen in the company of Harrison within the VIP area of Aurum nightclub;

2.     In the same month Nguena was again seen within Aurum in conversation with Harrison. A Liam Campbell, who has previous convictions under the Misuse of Drugs Act, was also seen in the VIP area;

3.     In December 2010 a Matthew Innes, a known criminal including for the supply of controlled drugs, was also seen in the VIP area of Aurum;

4.     In January 2012 a Craig Guthrie and a Gary Connell were both seen in Harrison's company in the VIP area of Aurum. Both have previous convictions; Innes has at least one conviction for the supply of controlled drugs;

5.     In February 2012 an Andrew Steinbach, a known criminal, was seen in the company of Harrison in the VIP area of Aurum.

 

Thus, Grampian Police concluded, the body of evidence directly linked Harrison with a serious and organised crime group involved in the supply of class A controlled drugs in Aberdeen and throughout the north east of Scotland, and that known criminals and drug dealers continued to frequent the Society Bar and Restaurant and Aurum nightclub, often in the direct company of Harrison. The police also concluded that Harrison remains a connected person for the purposes of the 2005 Act.

 

In their recommendations to the defenders, the police cited paragraph 23.2 of the defenders' current statement of licensing policy, which provides:

"Preventing crime and disorder places a responsibility on licence holders to become partners in achieving this objective."

 

Both licensed premises and Harrison provide (at p 17),

"friendly and welcoming premises for those involved in the supply of drugs and other criminal activity to socialise in. The conduct of the premises, Kirk Harrison, and known criminals are linked to each other and are, therefore, linked to the licensing of the sale of alcohol".

 

The police continue:

"It is very doubtful that drug dealers and other criminals would be attracted to Society Bar and Restaurant and Aurum, or Kirk Harrison as an individual, and the dwelling houses and other facilities he can provide, if he were not a businessman involved in the night-time economy, able to welcome them into his life, along with the additional attraction of these criminals having licensed premises where they can be comfortable. The Chief Constable is of the opinion that the Premises Licence Holders... are in breach of the Preventing Crime and Disorder objective as they are not conducting themselves in a responsible manner which will achieve the objective, as outlined at 23.2 in the Policy and are in fact at the centre of a network of criminal activity linked to them and therefore linked to the sale of alcohol...

Aberdeen City Licensing Board, in its Policy, 'wishes to see premises thriving in the City'. It is the opinion of the Chief Constable that these premises cannot be allowed to thrive as such, when the premises themselves are a magnet for some of the most serious criminals operating in Aberdeen, nor should public houses, restaurants or nightclubs use the veil of respectability afforded to them by being licensed premises as a front for high level criminal activity and criminal association which stems from those connected to it or those who frequent there, or on a lower scale, those who work there."

 

The police recommended that the premises licenses should be revoked.

 

Harrison's Associations - the Defenders' Decision

In their statement of reasons (p 22), the defenders recognised that they had to be satisfied not only that Harrison had a tangible association with the alleged criminal group but also that the association provided a link to any ground of review in respect of the licensed premises. Having decided on the evidence that Harrison did have such an association with the criminal group, the defenders went on to consider the link with the premises. They recognised that there was a close association between drug taking and licensed premises and that illegal drug taking and associated activities take place in many licensed premises and significantly contribute to the serious problems that that activity perpetuates in society. The police had concluded that the premises were "a centre of criminal activity" (p 23). Harrison's ownership of the premises allowed him to continue his association with persons who had convictions for drugs offences and thereby linked the premises to the crime prevention objective. That Harrison had not been charged with drug offences was not a crucial factor:

"The police were strongly of the opinion that the premises provided an environment for... drug dealers "to flourish" and the Board considered that the police were in the best position to assess any problems in respect of the crime prevention objective, which was reasonably supported.

There was sufficient information to indicate that licensed premises were being used for purposes likely to cause crime and disorder." (p 24)

 

Accordingly, the licences should be revoked.

 

Harrison's Associations - Discussion

Counsel for the pursuers submitted that the appeals should be granted on two of the grounds set out in Section 131 of the Act, namely that the defenders had erred in law and for two separate although linked reasons had exercised their discretion in an unreasonable manner. In particular, they had (a) erred in law in failing to apply the proper test to the applications, (b) erred in law et separatim exercised their discretion in an unreasonable manner in that they had reached decisions for which there was no factual basis, and (c) exercised their discretion in an unreasonable manner in that they had failed to provide proper and adequate reasons for their decisions. I deal with each of these grounds in turn.

 

(a)            Failure to apply the proper test

In Brightcrew Limited v City of Glasgow Licensing Board 2012 SC 67, the Inner House gave some general guidance on the proper construction of the 2005 Act. It held that the essential function conferred on a licensing board by the Act is that of licensing the sale of alcohol. The case concerned the refusal of a premises licence because, inter alia, the board considered, in terms of Section 23(5)(c), that the granting of the application would be inconsistent with one or more of the licensing objectives which, as set out in Section 4(1), include preventing crime and disorder. The court observed (at para 26):

"While the [licensing] objectives... are couched in very general terms such as 'preventing crime and disorder', it is important to note that those objectives are not, so to speak, 'freestanding'. They are qualified by the introductory reference to their being 'licensing' objectives. Since the licensing with which the statute is concerned is the licensing of the sale of alcohol, it follows in our view that, in the context of sec 23(5)(c) of the statute, inconsistency with a licensing objective is inconsistency flowing from the permitting of the sale of alcohol on the premises in question. The fact that the objectives listed in sec. 4 are all desirable in a general sense does not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol. For a licensing board so to insist would be to divert a power from its proper purpose, to use the terminology of French administrative law, a 'detournement de pouvoir'."

 

Counsel for the pursuers submitted that the defenders had failed to apply the test as described in Brightcrew. The defenders should have first considered whether crime and disorder had arisen through the sale of alcohol at the premises and then considered what crime and disorder will be prevented if action is taken against the premises. They had done neither. Instead, the defenders had merely identified a potential link between the sale of alcohol and the supply of drugs and which entitled them to conclude that the premises were being operated in a manner likely to cause crime and disorder. This idea, said counsel, of a 'potential link' was not the statutory test.

 

In my opinion, the Board did apply the correct test. That does not however mean that they applied it correctly, which is a different point. The defenders were referred to the Brightcrew case and in their statement of reasons correctly summarise the main point of it, namely, that "inconsistency with the licensing objective is inconsistency flowing from permitting the sale of alcohol". (p 23)

 

In any event, it seems to me that counsel's description of a two stage test is too prescriptive in that it does not allow for the possibility that certain behaviours or practices within premises could potentially lead to crime and disorder. That would be particularly so when a licensing board was considering whether to grant a premises licence under Section 23, but it could also apply when reviewing a licence under Section 36. One can surmise that it would be difficult to satisfy a licensing board that a ground of review is established where only a potential breach of a licensing objective is averred, but that, it seems to me, does not mean that there could be no circumstances in which such an application could properly be granted.

 

(b)            No factual basis for the decision

In Leisure Inns (UK) Ltd v Perth and Kinross District Licensing Board 1991 SC 224 (a case under the previous licensing regime), Lord Justice-Clerk Ross noted (at p 233),

"... behind every ground of refusal there must be adequate reasons, and that for these reasons there must be a proper basis in fact."

 

This was consistent with the well known dictum of Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 (at p 348) (in the context of planning law):

"So far as para. 11(1) is concerned all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

 

In my opinion, the defenders have been unable to identify a proper basis in fact for their conclusion that the licensed premises were being used for purposes likely to cause crime and disorder. The difficulty for the defenders is that while they had ample evidence upon which they could find, as they did, that Harrison associated with known drug criminals they had very little to find a nexus (Kennedy v Angus Licensing Board, unreported, Forfar, Sheriff Veal, 22 August 2012) between that association and the licensing of the premises for the sale of alcohol.

 

It seems to me that on that crucial point the only evidence is mere assertion by Grampian Police which has been repeated by the defenders. Even if it had been proved to the satisfaction of the defenders (which on the evidence it could not be) that Harrison was concerned in the supply of controlled drugs in Aberdeen contrary to the Misuse of Drugs Act, in order to establish the necessary link to the premises there would have had to have been evidence of the premises being used in furtherance of that criminal activity. As it was, the only evidence before the defenders was of known drug dealers being in the company of Harrison within the premises. There was no evidence of any conversations among them or some other interaction which might be about drug dealing or the like.

 

The police's assertion comes in various forms: "[the] premises... and Kirk Harrison... provide a friendly and welcoming premises (sic) for those involved in the supply of drugs and other criminal activity to socialise in." (letter, p 17); "the Premises Licence Holders... are in fact at the centre of a network of criminal activity linked to them and therefore linked to the sale of alcohol." (ibid); "the premises... are proving to be a magnet for some of the most serious criminals operating in Aberdeen... a front for high level criminal activity" (ibid, p 18)

 

The defenders in their statement of reasons appear to have accepted these assertions uncritically:

"The police were strongly of the opinion that the premises provided an environment for such drug dealers "to flourish" and the Board considered that the police were in the best position to assess any problems in respect of the crime prevention objective, which was reasonably supported."

 

While it might be unfair to say that the defenders merely accepted what the police said, it was nevertheless their role critically to analyse the conclusion which the police had reached. If they had done so, they would have found that there was in fact no evidence, other than of a most superficial kind, which created the necessary nexus between Harrison's associations and the sale of alcohol in the premises.

 

(c)            Inadequate Reasons

Counsel argued this as a separate ground, but in my opinion it was unnecessary to do so. Counsel submitted, under reference to Lord President Emslie's formulation (supra) and Ritchie v Aberdeen Licensing Board 2012 SC 570, that the statement of reasons must identify what the defenders decided were the material considerations, clearly and concisely set out their evaluation of them and then set out the essence of the reasoning that led them to their decision. I do not demur from that, but standing my conclusion that the link between the premises and Harrison's associations was so tenuous, I do not think that anything turns on it. The reasons postulated by the defenders become inadequate because they are not based on material facts, as I have earlier explained. Counsel was also critical of some of the evidence of Harrison's associations per se. But, as I have already held, I consider that the defenders were well founded in their conclusion that Harrison did indeed associate with drug criminals. Individual pieces of evidence could be analysed and questioned, but the reasons for the overall conclusion that there was such association cannot, in my view, be criticised. Indeed, as I understood it, the pursuers did not deny that Harrison associated with some of the individuals concerned - merely that the conclusion by the police that he was concerned in the supply of controlled drugs was wrong. But it was the association which was the eventual finding reached by the defenders.

 

Conduct of Door Stewards

I turn now to the second ground which was before the defenders.

 

Conduct of Door Stewards - the Police Evidence

The evidence was again contained in the letter of 19 July 2012 (p 12 et seq). It concerned events within Aurum on various dates between December 2011 and March 2012:

(a)   On 18 December 2011 (the year is wrongly recorded as 2012) a male patron was allegedly assaulted by a steward;

(b)   On 23 February 2012, a female patron was allegedly ejected by stewards and assaulted. One of the stewards was alleged to have said to her, "You're asking to be raped.";

(c)   On 25 February 2012, a male patron was allegedly assaulted by a steward;

(d)   On 3 March 2012, a male was allegedly assaulted by a steward on being refused entry to the premises;

(e)   On 4 March 2012, a male patron was allegedly ejected from the premises and then assaulted by three stewards;

(f)    On 25 March 2012, a male patron was allegedly ejected from the premises and assaulted by four stewards.

An intervention meeting took place with the police and three representatives of Ask Entertainment Nightclub Limited. The police were told that some, but not all, of the stewards allegedly involved in the incidents were no longer employed at Aurum and had been replaced with stewards employed by a security company. An action plan was agreed.

 

The police concluded that the conduct of the stewards was a serious cause for concern.

 

Conduct of Door Stewards - the Defenders' Decision

The particular concern for the defenders was that the licence holders should have secured proper management who should have been aware of the incidents and recorded them in the incident book, although the defenders acknowledged that their main concern was the issue of Harrison's associations. They included the stewards issue in their reasoning based upon the objectives of preventing crime and securing public safety. They also acknowledged that there had been no further incidents of such alleged conduct.

 

Conduct of Door Stewards - Discussion

Counsel for the defenders submitted that it was clear from the statement of reasons that the defenders regarded this issue as peripheral to the main issue of Harrison's associations. I agree with that. But counsel was not otherwise critical of the reasoning of the defenders. It seems to me, therefore, that the issue is what is the appropriate disposal, although I note that the defenders in their statement of reasons do not state, as they should have done, that this issue relates only to the license holders of Aurum. I discuss the disposal below.

 

Decision

For the reasons I have given I have decided that these applications should be granted and the appeals by both pursuers should be allowed. In relation to the Society Bar and Restaurant, the solicitor for the defenders submitted that I should remit the case back to the defenders for reconsideration of their decision and in doing so direct them on what evidence they should ignore. I do not agree with that. As I have described, there is in my view insufficient material evidence before the defenders which would have entitled them to come to the conclusion they did in respect of the link between the premises and Harrison's associations. No purpose would be served by a remit. Accordingly, I have decided simply to reverse the decision.

 

In relation to Aurum, the complication is the existence of the door stewards complaint. The solicitor for the defenders said that they would still wish to monitor the situation and that I should remit. That, it seems to me, is the correct course. It does complicate the terms of the interlocutor. I had no submissions on that from the parties and have therefore decided that I should allow parties to reflect upon what they would wish to be contained in it. The defenders will be found liable in the expenses of the appeal and sanction will be granted for the employment of counsel. I would ask parties' agents to contact my personal secretary to find a suitable date for a further hearing, although if parties can agree a position and advise me by e-mail and provided I am satisfied with what is proposed such a hearing will be unnecessary. In the meantime, for convenience I have simply put both cases out By Order so that they can be concluded at the same time.