Chief Constable Strathclyde Police v North Lanarkshire Licensing Board
| Jurisdiction | Scotland |
| Judgment Date | 08 October 2003 |
| Date | 08 October 2003 |
| Docket Number | No 17 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Licensing - Licensing board - Entertainment licence - Renewal in face of detailed objections by chief constable - Whether applicant required to respond to allegations set out in objections - Whether board entitled to conclude that applicant prejudiced by lack of specification in objections where offer to clarify contained therein - Whether decision of licensing board that wrongdoing had not been established on part of applicant rational - Whether sheriff had applied correct test in reviewing licensing board's decision - Licensing (Scotland) Act 1976 (cap 66), secs 16(1)(d), 17(1)(b) and (c), 39(4)
Section 16(1)(d) of the Licensing (Scotland) Act 1976 provides that the chief constable may object to any application for renewal to a licensing board made under the act. Section 17(1) provides that the licensing board shall refuse an application if it finds that one or more of competent grounds for refusal, being, inter alia, that the applicant is not a fit and proper person to be the holder of a licence or that the use of the premises for the sale of alcoholic liquor is likely to cause undue public nuisance, or a threat to public order and safety are made out. Section 39(4) provides that on appeal to the sheriff from a decision of a licensing board, the sheriff may uphold the appeal only if he considers that the licensing board in arriving at its decision exercised its discretion in an unreasonable manner.
An application for the renewal of an entertainment licence in respect of licenced premises was made by an individual and was considered at a meeting of the relevant licensing board on 12 October 2001. The local chief constable objected to renewal of the licence under sec 16(1)(d) of the Licensing (Scotland) Act 1976 and in terms of sec 17(1)(a) and (c) thereof to the effect that the applicant was not a fit and proper person to be the holder of a licence and that the use of the premises for sale of alcoholic liquor was likely to cause undue public nuisance or a threat to public order and safety. Nine specific instances of misconduct and underage drinking being allowed at the premises by persons as young as 14 years of age were given in the objections but none of the identities of the individuals were provided. Details of warnings given to the applicant by police officers, and which the applicant had accepted at the time, were also stated. At the hearing on 12 October, submissions by agents on behalf of the applicant and the chief constable were heard before the board retired to consider their decision which was in the applicant's favour. The applicant did not deny the incidents founded upon in the objections but claimed that she was prejudiced by the limited information provided therein. The board accepted this position. Following written reasons for the decision being provided, the chief constable appealed to the sheriff against the board's decision, contending that the board had erred in law in making its decision, had acted contrary to natural justice and had exercised its discretion in an unreasonable manner. The sheriff refused the appeal, holding that the chief constable's objections had been lacking in specification. Thereafter, the chief constable appealed to the Court of Session.
It was argued for the appellant that the board had simply accepted the position advanced by the applicant regarding the objections, ignoring the invitation set out therein that clarification would be given upon request. The board had erred in law in accepting the proposition that a licence holder was complying with the law if a potential customer appeared to be 18 years of age. The chief constable having lodged objections there arose a practical onus on the applicant to rebut these. The board had failed to take the warnings into account. The sheriff had similarly erred in upholding the board's decision.
Held that: (1) an applicant had to respond adequately to issues of relevance and significance raised in objections to a licensing board (para 23); (2) it was wholly unreasonable of the licensing board in light of the offer to provide further clarification given at the end of the objections to assert that the applicant had suffered prejudice in being denied the opportunity to present a defence or rebuttal of the allegations in the objections (para 26); (3) the licensing board's conclusion that it had not been established that the applicant had in fact done anything wrong was irrational and inconsistent with its own reasoning (para 27); (4) the sheriff had addressed himself to the wrong issue not having addressed the issue of whether the licensing board in arriving at its decision had exercised its discretion in an unreasonable manner (para 28); and appealallowed (dicta of the then Lord Cullen in JAE (Glasgow) Ltd v City of Glasgow District Licensing Board 1994 SLT 1164approved).
NORTH LANARKSHIRE LICENSING BOARD following a hearing at which both the applicant for renewal of an entertainment licence and the Chief Constable of Strathclyde Police were represented granted the renewal sought. The chief constable unsuccessfully appealed against this decision to the sheriff court and thereafter appealed to the Court of Session.
Cases referred to:
Allied Domecq Retailing Ltd v City of Glasgow Licensing Board 1999 SLLP 12
Baxter v Central Fife Divisional Licensing Board 15 April 1999, unreported
Cigaro Ltd v City of Glasgow District Licensing BoardSC 1982 SC 104
Glasgow District Licensing Board v DinSC 1995 SC 244
Hughes v Hamilton District Council 1991 SLT 628
JAE (Glasgow) Ltd v City of Glasgow District Licensing Board 1994 SLT 1164
McAllister v East Dunbartonshire Licensing Board 1998 SLT 713
MacDowall v Cunninghame District CouncilSC 1987 SC 217
Nottingham City Council v Mohammed Farooq [1998] EWHC Admin 991
Ranachan v Renfrew District Council 1991 SLT 625
Tesco Stores Ltd v Secretary of State for the EnvironmentWLR [1995] 1 WLR 759
The cause called before an Extra Division, comprising Lord Marnoch, Lord Osborne and Lord Weir for a hearing on the summar roll.
At advising, on 8 October 2003, the opinion of the Court was delivered by Lord Osborne -
OPINION OF THE COURT -
[1] The minuter in these proceedings was the holder of an entertainment licence in respect of licensed premises known as Garfields, 26 Sunnyside Road, Coatbridge. She made an application for renewal of that licence which came to be considered at a meeting of the defenders and respondents held on 12October 2001. The pursuer and appellant objected to the renewal of the licence in question in terms of sec 16(1)(d) of the Licensing (Scotland) Act 1976. The objections were set forth in a letter, dated 26September 2001, from the appellant to the Department of Administration of North Lanarkshire Council, which provided clerking services for the respondents. A copy of that letter was sent to each of the minuter and her solicitor. The objections were made in terms of sec 17(1)(a) and (c) of the 1976 Act and were to the effect that the minuter was not a fit and proper person to be the holder of a licence, and that the use of the premises for the sale of alcoholic liquor was likely to cause undue public nuisance, or a threat to public order and safety. In the objections themselves, attention was drawn to nine separate incidents which, it was contended, constituted misconduct on the part of the minuter as the holder of the licence, in terms of sec 17(1)(a) and misconduct on the part of persons frequenting those licensed premises, or in their immediate vicinity, in accordance with sec 17(1)(c) of the 1976 Act. Several of the incidents specified in the objections involved young persons under the age of 18 years, in one case as young as 14 years. While the nature of each incident was specified in a paragraph of the objections, the identities of the young persons involved were not disclosed. The detailed grounds of objection were as follows:
'About 0130 hours on Saturday 22 July 2000 Police Officers were on duty outside the premises when they were stopped by a female, aged 16, who was well under the influence of alcohol. This person stated that she had been drinking alcohol within the premises with her sister, aged 15, who was still within the premises. Police assistance was given and the 15 year old removed from the premises. She too was under the influence of alcohol. Both girls were warned. They stated that they were regular patrons to the premises, although refused to provide statements. The Licensee Mrs. Millar was not present. She was invited to Coatbridge Police Office on Thursday 23 August 2000 where she was given a warning, which she accepted. No charges were preferred.
About 0050 hours on Saturday 28 October 2000 Police Officers attended at the premises for a routine visit. Mrs. Millar was present. Whilst within the premises they identified two males who appeared to be under the age of 18. Both were observed by Police Officers drinking alcohol, namely lager. They were interviewed and their ages were ascertained as 17. Again they refused to supply statements. They were removed from the premises. A check of the female toilets found a female, who was obviously under the age of 18 and well under the influence of alcohol. Her age was ascertained as 15 and she was requested to leave the premises. She refused and on being arrested assaulted one of the Police Officers present. As a result of this incident a report was forwarded to the Reporter's Office detailing charges of contravention of the Licensing (Scotland) Act 1976 Section 79(1)(a), and the Police (Scotland) Act 1967 Section 41(1)(a).
About 0132 hours the same day staff reported a large-scale disturbance within the premises. On the arrival of the Police no disturbance was taking place, although chairs had been overturned and numerous bottles and glasses had been smashed on the floor. At the...
To continue reading
Request your trial
-
Thomas Melville V. City Of Glasgow Licensing Board
...in JAE (Glasgow) were themselves approved by the Inner House in Chief Constable of Strathclyde Police v North Lanarkshire Licensing Board 2004 SC 304.) [102] Thus, for example, it may be that, having carefully analysed all of the conflicting material presented to it, a Licensing Board may p......
-
Glasgow City Council Against Vicente Bimendi Under The Civic Government (scotland) Act 1982, Schedule 1, Paragraph 18(12)
...to provide explanations, supported if necessary by relevant material (Chief Constable of Strathclyde v North Lanarkshire Licensing Board 2004 SC 304 at paragraph 23; McAllister v East Dunbartonshire Licensing Board 1998 SC 748 at page 757G-H; Calderwood v Renfrewshire Council 2004 SC 691 at......
-
Alldays Stores Limited+pamela Greig V. Central Fife Divisional Licensing Board
...the complaint made against them. In support of that proposition Mr Blair referred to Chief Constable v North Lanarkshire Licensing Board 2004 S.C. 304. The Board were entitled to have explained to them the position of the pursuers. The pursuers did make an attempt to give such an explanatio......
-
Steven Ritchie V. Aberdeen Council
...to give to it (Hughes v Hamilton District Council 1991 SLT 628; Chief Constable, Strathclyde Police v North Lanarkshire Licensing Board 2003 SLT 1268). The procedure before the committee was fair. The appellant had prior notice of the objection and was given the opportunity to address the c......