Scottish Sheriff Court Decisions

B3123/09

SHERIFFDOM GLASGOW AND STRATHKELVIN AT GLASGOW

J U D G M E N T

by

C A L SCOTT, Advocate, Sheriff of Glasgow and Strathkelvin

in causa

MANMEET ARORA, Flat 5/12, 240 Wallace Street, Glasgow G51 8AU

APPELLANT

against

GLASGOW CITY COUNCIL, City Chambers, Glasgow G2 2DY

RESPONDENTS

GLASGOW, 17 May 2010. The Sheriff, having resumed consideration of the appeal, answers question (a) in the stated case in the affirmative and answers question (b) under deletion of the words "or act contrary to natural justice", in the affirmative; therefore, allows the appeal; under section 131(5) of the Licesning (Scotland) Act 2005, grants the appellant's application for a personal licence in terms of section 72 of said Act; finds the respondents liable to the appellant in the expenses of the appeal; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon; and refuses the respondents' motion for certification of the appeal as being suitable for the employment of junior counsel.

SHERIFF

NOTE

[1] This appeal arises from the licensing board's refusal of an application for a personal licence in terms of section 72 of the Licensing (Scotland) Act 2005. The appellant had been convicted on 18 October 2006 in relation to a contravention of the Road Traffic Act 1988 section 5(1)(a). Therefore, when it came to his application for a personal licence the chief constable was obliged to provide the licensing board with a notice under section 73(3)(b) specifying the existence of that conviction.

[2] In terms of section 74(5) the board was then obliged to hold a hearing for the purpose of considering and determining the application. In the case of the appellant, the board refused his application on the basis that it was satisfied that it was necessary to refuse same for the purposes of the crime prevention objective. (See section 74(6)(a).)

[3] In presenting the appeal, Mr Batters stressed that there had been no recommendation from the chief constable to the effect that the application should be refused for the purposes of the crime prevention objective. (See section 73(4)(b).) Mr Batters referred to his appearance before the Board on behalf of the appellant and the transcript of the dialogue which took place. Under reference to the note of appeal, he indicated that the ground predicated upon an alleged breach of natural justice was not insisted upon for the purposes of the appeal. However, he maintained that the board had erred in law in that they had applied the wrong test when it came to determining the application. Moreover, Mr Batters contended that the board had exercised its discretion in an unreasonable manner.

[4] Mr Batters criticised the board's reference to the relative "gravity" of the disposal by the court. He also submitted that any reference to the reading taken from the appellant's breath specimen was of no particular relevance arguing that it was the nature of the offence itself which mattered. In that connection, however, it was submitted on behalf of the appellant that the mere existence of a "relevant offence" under section 73 of the Act did not provide the board with the necessary foundation for a refusal under section 74(6)(a). Accordingly, it was maintained that the board had equated the existence of such a conviction with fulfilment of the legal test set out in section 74(6)(a) aforesaid.

[5] For completeness, and with particular reference to paragraph 10 in the note of appeal, it was also argued on behalf of the appellant that the board had applied the old, 1976 Act "fit and proper person" test instead of giving the application due and proper consideration under the 2005 legislation. Additionally, there was a suggestion towards the end of Mr Batters' submission that the aim of comparative justice had not been met. He referred to two other applications where, in broadly similar circumstances, the board had not issued refusals. Mr Batters also founded upon the decision of Sheriff Powrie in the case of Shafiq v North Lanarkshire Licensing Board (Hamilton Sheriff Court, 23 January 2009) reported 42 SLLP 24.

[6] In response, counsel for the board sought to highlight the nature of a personal licence under the 2005 Act. He referred to section 71 of the Act which made it clear that a personal licence authorised an individual to supervise or authorise the sale of alcohol. In passing, counsel stressed that the case of Shafiq had been concerned with an application for a premises licence. He also referred to section 72 of the Act and explained that once a personal licence had been secured, it allowed the holder of that licence to "ply his trade" throughout Scotland. Therefore, it was not restricted to any particular area within the country nor was it restricted to any particular form of trade. For instance, it could embrace the licence holder's involvement in a corner shop, a supermarket, a club or a public house. Counsel submitted that the board, when considering such an application, had to keep all of these features in view.

[7] Whilst the involvement of the chief constable was dealt with under section 73 of the Act, counsel emphasised that when it came to a determination of a personal licence application, the board was not bound by the chief constable's failure to recommend that an application be refused. Counsel submitted that, for the purposes of section 74(6)(a), the question of what amounted to necessity was not something which could be addressed in any absolute manner. It was an issue where opinions might very well differ.

[8] It was plain, submitted counsel, that the board was aware of the absence of any recommendation from the chief constable to the effect that the application be refused. However, section 74(6) obliged the board to form a judgment as to whether it was necessary to refuse the application for the purposes of the crime prevention objective, having regard to the particular circumstances of the case. Counsel suggested that it was perfectly possible for different licensing boards to reach different conclusions depending upon the material under consideration. In counsel's submission, provided that the conclusion reached was within the bounds of reasonableness, it could not be said to be anything other than a decision which the board was entitled to take.

[9] Counsel continued his review of certain statutory provisions by referring to sections 17, 19, 56 and 122 of the Act along with schedule 3 thereto. However, he inevitably returned to focus upon the significance of a "relevant offence" for the purposes of the present appeal. He characterised the existence of such as disclosing an attitude or state of mind attributable to the individual who committed the offence, but accepted that, in determining a licence application, a licensing board could not and did not operate within a vacuum.

[10] It was submitted that the context in which an offence was committed, the explanation given and the offender's attitude were factors which all served to colour the board's view. The board required to arrive at its decision based upon the material placed before it. An offence under section 5 of the Road Traffic Act 1988 was, argued counsel, clearly linked to an understanding or otherwise of the dangers associated with the use of alcohol. In passing, counsel suggested that the case of Shafiq could easily be distinguished on its own particular facts. The board in the present case was "concerned that the appellant could not responsibly fulfil the legal obligations which would be incumbent on a personal licence holder in authorising or supervising the sale of alcohol in licensed premises which failure to do so could result in the commission of further relevant offences." (See pp 2-3 of the stated case). The appellant had put forward a very limited explanation as to his conduct on the occasion in question.

[11] Counsel for the board reminded the court of Lord McCluskey's observations in the well known case of Ranachan v Renfrew District Council 1991 SLT 625. It was submitted that the board had clearly identified the correct test for determination of the application and that there had been no error of law. The reasons given by the board were intelligible, submitted counsel. In its judgment, it had been necessary to refuse the application when considered against the background narrated.

[12] Reference was also made to the case of Hughes v Hamilton District Council 1991 SC 251. Counsel argued that the weight to be attached to the material under consideration was for the board to assess. The board had material before it which demonstrated that the appellant had decided to drive his motor vehicle having consumed alcohol. In the board's assessment, this amounted to a "fundamental error of judgment" (see final paragraph on p 2 of stated case). In the final analysis, counsel maintained that the board's approach could not be criticised and that both questions posed within the stated case should be answered in the negative.

Decision

[13] It seems to me that to characterise the offence in question as amounting to a "fundamental error of judgment" is to state the obvious. By definition, a contravention of section 5 of the Road Traffic Act 1988 is always going to involve poor judgment, perhaps, of varying degree. However, as seems to have been argued in the case of Shafiq, were licensing boards to do no more than equate the existence of such an error of judgment with a necessity to refuse an application under section 74(6) then very few, if any, licences would be granted. Accordingly, in my opinion, in order to apply the section 74(6) test correctly, a licensing board, in refusing an application, requires to identify a separate, discernible factor pointing to necessity for the purposes of the crime prevention objective.

[14] In the present appeal, having carefully considered the stated case in the light of the competing submissions, I have concluded that the material before the board was inadequate for it to establish any relevant connection between the characteristics of the single offence under scrutiny and the statutory test in section 74(6).

[15] I recall that in the course of the appeal hearing, counsel for the board was asked to identify those inherent, qualitative features of the offence which entitled the board to be satisfied that it was necessary to refuse the application for the purposes of the crime prevention objective. Counsel initially responded that the board had been entitled to approach the offence from its own perspective, sitting as a licensing board. The board had listened to the explanation put forward by Mr Batters at the original hearing and it had reached the view that it was not satisfactory. Counsel was pressed for an explanation as to why it was necessary to refuse the application. The response given, in summary, amounted to the proposition that the commission of such an offence reflected poorly upon the appellant's judgment and that, accordingly, there was a doubt as to whether he could be entrusted with the responsibilities of a personal licence holder. Unfortunately, it seemed to me that the real nature of counsel's response to the question "Why was it necessary?" was, "It was necessary, because it was necessary."

[16] That is also the clear impression one gains from a reading of the stated case. Whilst it may be that the board did not actually seek to apply the previous "fit and proper person" test, in my view, it nevertheless failed to apply the section 74(6) test in a proper manner and, therefore, erred in law. Even if I am wrong about that, it is my opinion that the board, in approaching the matter in the way that it did, exercised its discretion in an unreasonable manner. The mere existence of the offence under section 5 of the 1988 Act did not justify the conclusion that it was necessary to refuse the application. There required to be a discrete reason for the board's conclusion that it was so necessary and that reason required to be properly explained. No such reason or explanation appears within the stated case.

[17] I would also add that, where a chief constable has decided not to recommend that the application be refused, in my judgment, a licensing board must, at the very least, provide an explanation as to why it has decided to take a view contrary to that of the chief constable. Section 74(6) makes it clear that the board is required to have "regard to the chief constable's notice". To my mind, that process involves a reflection upon the significance of the notice and the need for a licensing board to render explicit its own approach to the matter.

[18] For the avoidance of doubt, I have not placed reliance upon the decision in the case of Shafiq. Each case must turn upon its own particular facts and circumstances. However, in the circumstances of the present case, it is my view that the appeal should be allowed and I have answered the questions posed in the stated case accordingly. In terms of section 131(5) of the 2005 Act, I have decided that the application for a personal licence at the instance of the appellant should be granted.

[19] The appellant has succeeded in the appeal. Accordingly, he is entitled to the expenses thereof. I did not consider that the nature and scope of the appeal merited certification of junior counsel.