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Relief on the review front

16 July 12

A recent sheriff court appeal offers some hope to those concerned at how licensing boards are applying the licence review provisions to test purchase failures

by Tom Johnston

Section 39 of the 2005 Act continues to provide a steady stream of material for licensing columnists. The Lidl v Glasgow Licensing Board case, commented on at Journal, January 2012, 24, caused much dismay among practitioners in private practice.

For those of you who missed it, the Lidl case provided authority for the proposition that a single test purchase failure could indeed justify a finding that a ground of review had been established, and that a short suspension was justified, largely for reasons of deterrence. The appeal is not scheduled until November. I am pleased to say that some considerable relief is afforded by the recent important decision of Sheriff Principal Stephen in Tesco Stores Ltd v Midlothian Licensing Board, Edinburgh Sheriff Court, 17 April 2012, unreported. Space permits only a brief analysis here – do read the full judgment when you can.

Successful attack

The facts were straightforward. Following a single test purchase failure, Midlothian Licensing Board decided to suspend Tesco’s licence for a period of 48 hours. The ground of review held established related to the licensing objective of “protecting children from harm”. No criticism was advanced at any stage of Tesco’s systems and procedures, which were described as robust and rigorous. Tesco successfully appealed to the sheriff principal.

Various interesting arguments were advanced by Robert Skinner, counsel for the pursuers.

The first, I suspect, may be used in virtually all test purchase cases. Test purchasers require to be 16 years of age. Yet virtually all of the review applications which follow cite the objective of “protecting children from harm”. A child is defined in the Act as a person under 16. It was argued this ground was irrelevant in the present context, where the sale had been to a “young person”.

Secondly, the board had not criticised the pursuers’ policies and procedures, but simply went on to say that these “should have been adequate in order to prevent the test purchase having been failed”. In passing I would say that this highly flawed reasoning is depressingly common. A bad thing happened, therefore it must have been the licensee’s fault. Have councillors and council staff never made a mistake in their lives? Counsel attacked this approach as effectively applying a strict liability test, something which is not provided for by statute.

Both of these arguments found favour with the learned sheriff principal.

Necessary action?

The final question was, why it was necessary or appropriate to suspend the licence? The defenders argued the Lidl line of deterrence/prevention of recurrence. The court was having none of this, pointing out that a short suspension would guarantee prevention of any recurrence only for that very short period.

The sheriff principal made it clear that “inexplicable human error” in a case where there were robust systems was insufficient to find that a ground for review had been established, and quashed that finding. She did, however, comment on differences between this and the Lidl case. In the latter case the sale was made by the duty manager.

Finally, she was highly critical of the board in making the suspension effective immediately. This, she said, “creates a clear risk of denial of justice”. While there may be cases where it is justified, for example where there are public order concerns, the sheriff principal stated: “it appears to be conducive to fairness and the proper interests of justice to allow appellants an opportunity to make an application for recall with the benefit of written reasons for the board’s decision”.

So three cheers for the sheriff principal. Roll on November.

The pursuers’ solicitor was Jack Cummins, doyen of Scottish licensing writers. He has just qualified for his bus pass. Happy birthday, guvnor.

Tom Johnston, managing partner, Young & Partners LLP, Glasgow and Dunfermline

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