Petition Of Mecca Bingo Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Date | 08 June 2004 |
| Docket Number | P1353/03 |
| Court | Court of Session |
| Published date | 08 June 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P1353/03
| OPINION OF LORD CLARKE in the Petition of MECCA BINGO LIMITED Petitioner; for Judicial Review of three decisions of the City of Glasgow Licensing Board dated 20 June 2003 under Section 32 of the Gaming Act 1968 ________________ |
Petitioners: Sir M. Campbell, Q.C.; Skinner; Dundas & Wilson, C.S.
Respondents: Peebles, Q.C., S. Wolffe; City of Edinburgh Council
8 June 2004
Introduction
[1]This petition, for judicial review, came before me for a first hearing. At the commencement of the hearing the petitioners sought to add substantial new averments to their petition. This was opposed by the respondents but, in the event, I allowed the adjustment for the petitioners to be made. In broad measure these new adjustments shifted the petitioners' position from simply attacking certain decisions of the respondents, in the exercise of their discretion under Section 32 of the Gaming Act 1968, to adding an attack on the policy upon which those decisions were based or, alternatively, an attack based on the respondents' failure to produce adequate reasons for that policy.
[2]The respondents are the Licensing Board for the City of Glasgow, constituted under Section 1 of the Licensing (Scotland) Act 1976. In that capacity they deal with, among other things, licensing of bingo clubs. Part III of the Gaming Act 1968 deals generally with control of supply and use of gaming machines. Section 31 of the Act specifically deals with the use of gaming machines in premises which are licensed or registered as a club or miners' welfare institute. Section 32(1)(b) provides as follows:
"The maximum number of machines to which this Part of this Act applies which may be made available for gaming shall be ...........
(b) in the case of bingo club premises (as defined by Section 20 of this Act), four ..."
Parliament has, however, provided for the possibility of a relaxation of this maximum number. It did so by enacting the provisions of Section 32(1)(b) and Section 32(3). Those provisions are in the following terms:
Section 32(1)(b) provides
"In connection with any application for the grant or renewal of a licence under this Act the applicant may request the licensing authority to give -
(b) in the case bingo club premises (as defined by Section 20) a direction under sub-section (3)."
Section 32(3) is in the following terms:
"Where a request is made for a direction under the sub-section, and the licensing authority grant or renew the licence, they may, on doing so, give a direction under this sub-section specifying a maximum number of AWP machines."
Section 32(4) then goes on to provide:
"At any time when -
(a) a direction under sub-section (3) is in force, and
(b) the number of AWP machines available for gaming on the premises does not exceed the number specified in the direction,
those machines shall be disregarded for the purposes of Section 31."
Section 32(5) defined an "AWP machine" as
"a machine to which this part of the Act applies in respect of which either -
(a) the conditions specified in Section 34(2) and (3), or
(b) the conditions specified in Section 34(5)(B) and 5(C),
are observed."
[3]The petitioners own and operate bingo halls at (1) Great Western Leisure Park Glasgow, (2) Unit One, Junction 10, Auchinlea Retail Park, Glasgow and (3) at the Forge, Parkhead, Glasgow. The respondents are the licensing authority, for the purposes of licensing these bingo halls, by virtue of the provisions of Schedule 2 to the Gaming Act 1968. The petitioners have, for some time, held licences in respect of the said bingo halls. These licences fell to be renewed in or about June 2003. At the time of applying for the previous renewals of these licences, the petitioners obtained directions from the respondents under Section 32, allowing them to operate 37 AWP machines at their premises at Great Western Leisure Park, 20 AWP machines at their premises at Auchinlea Retail Park and 37 AWPs at their Forge Parkhead premises. The petitioners' applications for renewal of their bingo club licences in 2003 were considered at a meeting of the respondents held on 20 June 2003. At that hearing, the petitioners' solicitor, Mr Loudon, sought directions from the respondents that the maximum number of AWPs at their Great Western Leisure Park premises should be 55, that at their Auchinlea Retail Park retail premises the maximum number should be 55 and that at their Forge Parkhead premises the maximum number should be 35. In doing so, Mr Loudon, was well aware that the respondents had, for a number of years, operated a policy in respect of requests made under Section 32, to the effect that the maximum figure for the number of AWP machines in any case would be 37. The policy is set out in a document which is number 7/1 of process and which is headed:
"Meeting of the Licensing Board on 29 August 2003.
Review of policies of the Licensing Board
Summary of policies."
At para. 14, page 10 of that document the following is stated:
"Gaming Act 1968 - Policy relative to directions in terms of Section 32 - AWP machines in bingo halls.
Purpose of policy.
To regulate the number of AWP machines in bingo halls for the purpose of safety and convenience of usage and to protect the traditional social atmosphere in bingo clubs.
Date of introduction
October 1993
Effect of policy
The Board in general will only make a direction in terms of Section 32 after having regard to the following main considerations:-
(1) The principal and major use of the premises should always remain as a venue for the playing of bingo and the making of the direction in terms of Section 32 of the 1968 Act should not detract from that use.
(2) In support of (1) above the AWP machines should be positioned in a single enclosed area completely separate from the area where bingo is played and the presence of the machines on the premises should not be visible to the public from outside the premises.
(3) The number of machines in the premises should not exceed that which will compromise safety or convenience of use.
(4) The applicant should demonstrate a demand for the presence of a larger number of machines on the premises and therefore a requirement for a Section 32 direction.
In circumstances where the Board determine to grant the Section 32 direction the following criteria is generally applied in deciding the number of machines permitted on the premises:-
For premises with an occupant capacity of up to 1000 persons - 20 machines.
For premises with an occupant capacity above 1000 persons - 20 machines plus 2 machines for every 100 occupants above 1000 (with no allowance for any number of occupants below 100) up to a maximum of 37 machines.
The Board has determined that the number of AWP machines permitted in each case will be unaffected by the 4 jackpot machines, which bingo premises can now by law additionally provide."
There was no suggestion that the respondents had ever departed from that policy in respect of applications made to them under Section 32 since the policy's inception in 1993.
[4]The petitioners' applications for renewal of the bingo club licences and their applications for directions under Section 32 attracted no objections. After hearing Mr Loudon, in respect of the applications for Section 32 directions, and having retired to consider the matter, the respondents granted renewal of all three bingo club licences, but issued Section 32 directions which adhered to the maximum figure of AWPs which had obtained previously in respect of each of the premises. It is against the refusals to increase the maximum numbers, as requested by the petitioners, that the present petition is directed.
[5]There is some history to this matter. That history revealed that for some time the petitioners have felt aggrieved that the respondents have refused to alter their policy to put a cap on the number of AWPs allowed at any bingo hall premises, within their area, at 37. I was advised by counsel for the petitioners that, in so doing, the respondents are out of step with other licensing authorities in other areas operating their powers under Section 32. This is not the first occasion on which challenges have been made, in judicial proceedings, of decisions of the respondents in respect of their exercise of discretion under Section 32. In the case of Gala Leisure Limited v Glasgow Licensing Board (2000) 15 S.L.L.P. 16 another operator of bingo halls sought judicial review of a decision by the respondents which refused a request for a direction to permit a maximum of 50 AWPs in bingo club premises and which instead restricted the maximum number to 37. The petitioners, in that case, sought to attack the decision, on the basis that they were not given, and did not know, the reason for it. In the absence of reasons, it was submitted that the Court should infer that the refusal to allow 50 machines was manifestly irrational, i.e. so unreasonable that no licensing authority acting reasonably could have reached that decision. For anything that was disclosed, it was said, the figure of 37 was entirely arbitrary and related to an arithmetical calculation for which no justification was advanced. The petitioners in that case, furthermore, contended that it was quite wrong that the discretion of the respondents should be fettered by some formula, calculation or figure. While it was not disputed that a licensing board might have a policy, the policy could not be applied blindly and without reference to the facts of the instant case. In any event, in the absence of any justification for what appeared to be an arbitrary decision, it was irresistible that the board had either taken account of irrelevant or immaterial considerations or had failed to take account of all the relevant material considerations which they ought to have taken into account. The Lord Ordinary, Lord McCluskey, rejected all of these arguments and refused to disturb the...
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