SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

 

B608/12

 

JUDGMENT

 

by

 

SHERIFF PRINCIPAL DEREK C W PYLE

 

in causa

 

 

EPIC GROUP (SCOTLAND) LTD, having a place of business at Victoria House, 259 Union Street, Aberdeen

Pursuers

against

 

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

Defenders

 

 

 

 

 

[1] This is an application in which the pursuers appeal the decision of the defenders to suspend the premises licence for a period of fourteen days in respect of licensed premises known as the Pearl Lounge, 16 Dee Street, Aberdeen.

 

[2] As will be seen, the appeal arises from a lamentable series of events caused by the defenders, but not just during the hearing which resulted in the suspension but also during the appeal process. The merits of the appeal are, unsurprisingly although belatedly, not in dispute. The issue before me was what disposal I should make after allowing the appeal.

 

[3] Before I deal with that issue and parties' submissions thereon, it is necessary to set out the factual background.

 

[4] By letter dated 3 September 2012, Grampian Police submitted an application for review of the pursuers' premises licence. In it the police alleged that the pursuers had breached certain mandatory conditions of their licence by not operating effectively a system for the verification of the age of patrons and not ensuring that there were suitable licensed door supervisors to maintain order, security and to prevent patrons breaching the licensing objectives. It was also alleged that the pursuers had breached four of those objectives.

 

[5] There were two incidents. The first was of a 16 year old girl being drunk and disorderly within the premises and which resulted in her being ejected. She subsequently was involved in an assault on two females, albeit not in or immediately outside the premises. The second was of two male patrons being drunk in the premises and an assault by them on another male who was also drunk.

 

[6] The defenders decided that two of the four licensing objectives had been breached, namely preventing public nuisance and preventing crime and disorder, as well as other conditions. As I have said, they also decided that the pursuers' licence should be suspended for a period of two weeks.

 

[7] In the record the pursuers set out their grounds of appeal. All of them are conceded by the defenders. They are in summary as follows:

 

1. During the hearing a member of the defenders was seen to be asleep for, according to the pursuers, a substantial period of time. (The defenders admit that she "dozed off" but they neither admit nor deny the length of period she did so.) Notwithstanding that, she retired with the other members to consider their decision and took part in their deliberations. On the defenders' decision being announced, the member stated that she agreed with it.

 

2. During the hearing, the pursuers' agent was making a submission. The representative of Grampian Police interrupted to object to the reference by the agent to a production. Without hearing the agent in response to the objection, the defenders sustained it.

 

3. The defenders failed to vote on their decision in public, but did so in private after their deliberations.

 

4. On announcing the decision the convener of the defenders misrepresented to the pursuers' agent the grounds for review which the defenders had decided were established.

(In his note of argument, counsel for the pursuers identified five grounds. Looking at the record, I think that the defenders have in fact conceded only four. Given the relative importance of each ground, I do not think that anything turns on that.)

 

[8] It scarcely needs to be said that these are serious breaches of natural justice. I dare say in a whole career as a judicial office holder there will be occasions, hopefully few, when the temptation to "doze off" can appear to be an attractive option - and I do not wish to criticise too harshly the member who did so in this case. She is, I am told, an experienced member and indeed a former convener. Nevertheless, it is surprising that having presumably realised that she had missed some of the exchanges during the hearing she still thought it appropriate to participate in the deliberations and vote in favour of the decision reached by her colleagues. It is equally surprising that apparently no other member of the defenders either noticed that she had fallen asleep or, if they did notice, did not consider the inappropriateness of her being involved further in the proceedings. I do not know what the quorum is for such hearings but if the member's disqualification from further participation in the hearing would have meant that the hearing would have to be adjourned, then that was the decision the defenders ought to have made. The second breach is equally serious, given that the agent concerned, Mrs Janet Hood, is an eminent licensing practitioner and it is most unlikely that any submission which she wished to make would not have assisted the defenders in their deliberations.

 

[9] In fairness to the members, it should not be forgotten that they are not legally qualified, no matter how experienced in matters of licensing law and practice. They were entitled to receive sound advice from their clerk. In this case, it appears that the advice from that source was not as it should have been. Having said that and in the light of subsequent events, I do however question whether even proper advice would have been taken. It is to these events I now turn.

 

[10] On 15 October 2012, the pursuers lodged their application with the sheriff clerk. As is commonplace in such appeals, the pursuers moved to have the decision of the defenders suspended ad interim pending the conclusion of the appeal. The reason for such a motion is obvious: if it were not granted, the suspension of the licence would be served and the appeal would become academic. Such motions are considered on the well known test of whether there is a triable issue and the balance of convenience. The terms of the summary application have changed little from their original form to their final state in the record, at least in respect of the first three grounds of the appeal, the fourth not emerging until after the defenders' statement of reasons was produced. The defenders were therefore in no doubt about the basis of the appeal when the motion for interim suspension was heard. As counsel for the pursuers submitted, it was difficult to see on what basis the motion could be successfully opposed by the defenders. Nevertheless, it was so opposed. I was advised by Mr Smith, the agent for the defenders, that he had appeared at the hearing of the motion. He conceded that he had given clear advice to the defenders that the motion should not be opposed. It had been said by counsel that he understood that the members of the defenders had "wanted the matter opposed no matter what". When pressed by me, Mr Smith confirmed this was so, despite the advice he had tendered. Of course, even the most hopeless opposition can be presented, often merely in a formal manner - and is stated to be so. But the significance of the defenders' stance becomes clearer as subsequent events unfolded.

 

[11] On 14 November 2012, the sheriff, acting under powers delegated by me, allowed the defenders fourteen days to lodge answers to the application. Mr Smith also moved that the case be remitted back to the defenders, presumably on a concession that the appeal be allowed. That motion was rightly refused by the sheriff. The defenders lodged their answers on 27 November 2012 - nearly six weeks after they had received the service copy of the application. In answering the averments about the member falling asleep, the defenders had this to say:

"Explained and averred that that individual or individuals (sic) who say that Muriel Jaffray was seen to be asleep are mistaken in what they saw."

 

Putting to one side the technical and grammatical ineptitude of this averment, in the light of the subsequent position of the defenders it is an extraordinary statement. When pressed by me, Mr Smith disclosed that a statement had been taken from Ms Jaffray. She had said that she might have dozed off but was unsure. The clerk to the defenders said the same. At the very least, the averment ought to have been that the pursuers' averment was not known and not admitted. In fact, given the defenders' final position, it might be more accurate to say that they ought to have admitted the averment. They certainly had had ample time to discover the truth.

 

[12] Added to that, the defenders in their answers sidestepped the issue raised by the pursuers about the police objection although in fairness there is no general denial that it had occurred.

 

[13] The enthusiasm of the defenders for a vigorous defence of their position was confirmed in a press article on 20 October 2012. In it, a representative of the pursuers, described as "the boss", had confirmed that the appeal had been lodged. (During the course of the hearing before me, Mr Smith expressed reservations about the appropriateness of the pursuers talking to the press about the case, although, as I pointed out, it was scarcely for the defenders to complain given that their convener had appeared on local radio on 11 October to talk about it.) In the article, there was a quote from a spokesman for the defenders who stated that "[w]e will continue with our preparations for a robust defence of the licensing board's decision when the appeal goes to court."

 

[14] The issue before me was whether, on the pursuers' motion, I reverse the decision of the defenders or whether, on the defenders' motion, I remit the case to the defenders to consider of new. I have decided that the decision should be reversed.

 

[15] In G A Estate Agency Ltd v City of Glasgow District Council 1991 SLT 16 where the Inner House described the breach by the local licensing committee as "a blatant, deliberate contravention of the principles of natural justice" the committee was directed to grant the application. In Mahmood v West Dunbartonshire Licensing Board 1998 SC 843, a similar approach was taken by the sheriff and supported by the Inner House where the breach of natural justice had been of possible bias by the chairman who had a private conversation with an objector before the hearing. (Counsel advised that senior counsel in that case had withdrawn his opposition to the reversal of the decision after it was suggested by Lord McCluskey that this might be the correct course for senior counsel to take.)

 

[16] In G A Estate Agency, the breach of natural justice was that the committee gave three grounds for refusal, the third of which had not been the subject of discussion at the hearing. A similar circumstance arose in William Hill (Scotland) Ltd v Carrick District Licensing Board 1991 SLT 559 but on that occasion the same Division of the Inner House, albeit a differently constituted one, decided that the case be remitted to the board to hear de novo. The court was not referred to G A Estate Agency. In Matchurban Ltd v Kyle and Carrick District Council 1995 SC 13, following a breach of natural justice, the Inner House was referred to both of these decisions. In deciding to remit to the licensing authority, the court said,

"This is not an easy matter because there is some risk that attitudes may have hardened having regard to the history of these applications. The applications themselves were made in 1992 and only after the successful appeal on the preliminary planning issue. On the other hand, however, Parliament has decided that the decision on matters of this kind should be taken by the local licensing authority and there would need to be compelling reasons for removing from such authority the responsibility for taking such decisions. In the present instance,... we are simply unable to tell to what extent, if at all, other members of the committee which cast their votes against the applications were influenced by anything said or done by the provost."

 

 

[17] That the hardening of attitudes is a relevant consideration to be weighed in the balance had previously been confirmed in Botterills of Blantyre v Hamilton District Licensing Board 1986 SLT 14.

 

[18] In my opinion, these authorities show that each case must be decided on its own facts and circumstances and that there is a danger in placing too much reliance on the facts in one case in contrast to those in another. Nevertheless, it must be recognised that Parliament has decided that the defenders are the appropriate body to decide matters surrounding the licensing of premises in which alcohol is sold and in only compelling circumstances should the court take that responsibility to itself. In any event, a court cannot have the necessary knowledge of local conditions to make an informed decision in the same way that a licensing board can. But it seems to me that where the actings which constitute a breach of natural justice or possible or actual bias are so serious or where there is a sufficiently serious risk, whether actual or perceived, of the board not considering the case of new in a dispassionate and judicial manner these rules of public policy must take precedence over the desire of Parliament.

 

[19] In moving that I reverse the decision, counsel relied on the individual breaches which he said were individually and collectively of a most serious kind. He also relied upon the decision, which he characterised as unwise, of the convener of the defenders to give an interview on local radio when she knew the case was to be appealed, the quotation of the defenders' spokesman in the press article, the comment by the defenders that the motion for interim suspension must be opposed no matter what, particularly when there was no proper reason for such opposition, the misleading nature of the answers to the application nearly six weeks after the appeal was lodged and the fact that there are only ten available members of the defenders, nine had sat in this case (although one had left before the hearing finished) and that it was therefore impossible to constitute a new board with none of the eight involved.

 

[20] Mr Smith for the defenders submitted that no matter their failings it was clear that there were facts upon which the defenders were entitled to rely in making their decision, that the failings were truly errors of procedure which would best be rectified by a re-hearing and that in opposing the motion for interim suspension the defenders were showing that they treated the matter seriously.

 

[21] In fairness to the defenders, I cannot say that their failures at the hearing were anything other than incompetence and at least in respect of some of those failures they appear to have taken the advice of their clerk. But that, of course, cannot defeat the rules of natural justice where the motives of the tribunal are nothing to the point, at least in an exculpatory way. Each of the failures constitute in my opinion serious breaches - indeed failure alone to vote in public has previously resulted in the reversal of a decision and no remit being allowed (Simpson v Banff and Buchan District Licensing Board 1990 SC 347). In my opinion, they are both individually and collectively sufficiently serious for me to conclude that a remit is inappropriate

 

[22] The alleged breaches which the defenders had to consider were undoubtedly important, particularly the one involving under age drinking. Moreover, the pursuers had previously received - in 2010 - a written warning by the defenders for breaches of licensing objectives. Nevertheless, it is significant that, as counsel pointed out, the police did not see fit to report the incidents to the defenders until four months had passed since the second incident, during which period presumably the pursuers had continued to trade. Thus the importance of the alleged breaches is not so material that it would persuade me not to reverse the defenders' decision.

 

[23] As regards the other factors relied upon by counsel, I do not take into account the interview on local radio. That was given before the appeal was lodged and in any event the convener said that if the pursuers appealed the defenders would be bound by the decision of the court. Nor do I regard the spokesman's comment in the press article to be of great concern, although in my view it was unwise for the defenders to make any comment when they were aware, as by then they were, that an appeal had been lodged. And I am prepared to accept, in the absence of clear evidence to the contrary, that some of the averments in the answers probably arose more through incompetence than anything more sinister.

 

[24] But I do regard the averment denying that Ms Jaffray fell asleep in a different light. It is the responsibility of a party in any court proceedings not to mislead the court. It is also a party's responsibility to ensure that there is a proper basis in evidence for all averments of fact stated in its pleadings. By denying that Ms Jaffray had fallen asleep the defenders misled the court. That is a most serious charge - in many respects more serious than the breaches of natural justice during the hearing. It is particularly disappointing to record that about a public body which exercises a quasi-judicial function. Despite being pressed by me on several occasions, Mr Smith was unable satisfactorily to explain why this averment had been made, but given the comment by the defenders that the motion for interim suspension was to be opposed no matter what and was so opposed in the teeth of very sound advice from Mr Smith that it should not be, together with the spokesman's comment about a robust defence, I am also entitled to conclude that the averment was intentionally inserted despite there being no evidence at all to support it. For that reason alone, it is in my opinion clear that there is a very real risk indeed that the defenders will be quite unable to behave in a fair and impartial manner in the event that the case is remitted to them de novo.

 

[25] Thus for all of the above reasons the appeal is allowed and the decision of the defenders is reversed. Expenses follow success and it was properly conceded by Mr Smith that the appeal was suitable for the employment of counsel.

 

[26] I should add as a postscript that I had considerable sympathy for the position which Mr Smith had been put in by the defenders. He was subjected to a lengthy period of close questioning by me, which very obviously caused him discomfort. That was because he was clearly torn between his duty to his client and his (higher) duty to the court. At first, he tried manfully to defend the indefensible, but quite properly eventually acted in the manner I would expect of an officer of the court. I have not had the previous pleasure of having him in my court but after making enquiries I have every reason to think that he is a competent solicitor who understands where his professional and ethical responsibilities lie. He is of course employed by Aberdeen City Council. They owe him a duty of care as one of their employees. In my opinion, they should look closely at the circumstances of this case to see what lessons can be learned, a recommendation that applies even more so to the members of Aberdeen Licensing Board.