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Enough to send you to sleep

15 April 13

Natural justice issues before licensing boards, and the recent consultation on how the system is working

by Tom Johnston

It’s a humdrum business, our wonderful world of licensing. While my submissions are, of course, always well crafted, elegant and occasionally witty, I have from time to time wondered how I would react if forced to sit and listen to them.

These thoughts were brought into sharp focus by a reading of Epic Group (Scotland) Ltd v Aberdeen Licensing Board (B608/12, 11 February 2013, available on the Scottish Courts website). This was an appeal to the sheriff principal against a suspension of a premises licence. In what the sheriff principal described as a “lamentable series of events”, the following happened. A board member fell asleep, yet retired with the board to consider its decision and professed herself happy with it; the board upheld a procedural objection by the police without giving the appellants’ agent an opportunity to respond; and finally, the board failed to vote on its decision in public.

Appeals on grounds of natural justice are rarely successful. This one went through with apparent ease, the sheriff principal deciding to reverse the board’s decision instead of remitting. Like the sheriff principal, we must be slow to condemn the unfortunate board member; however, it was the board’s conduct as a whole which was strongly criticised. The sheriff principal advised that they should look strongly at the case to see what lessons can be learned.

The board gave a radio interview, even after the appeal was lodged, denied on record the falling asleep, and ignored advice regarding the interim recall of the suspension, stating that the matter should be opposed “no matter what”.

The recent consultation document on further options for alcohol licensing reflects concerns about this type of procedural mess. These are matters which have been expressed not just by solicitors but also by ACPOS. The consultation paper asked for examples of bad practice. I suspect that many of us needed some supplementary sheets to complete that. The problem is that while most boards conduct their business very well, those that are bad are often very bad indeed. As a solicitor, I really don’t give two hoots about dealing with rudeness – rhino hide is an essential for our trade; however, when a client sees his or her livelihood affected by a board which seems indifferent or biased, they will not accept that they have been treated fairly and the whole system threatens to fall into disrepute.

The same concerns were expressed to the Nicholson committee more than 10 years ago. Complaints reported there included “unnecessary interruptions, an appearance of bias or minds having been made up even before submissions have been made, an inability to distinguish between facts and mere hearsay, and an appearance of indifference to what is being said by, or on behalf of, an applicant or an objector”.

Whenever licensing lawyers gather, tales abound of the continuance of this type of behaviour in certain areas. We are often accused of exaggeration by those clerks who run a tight ship. If the Epic case does one thing, it provides proof that things still need to improve. Board members now receive training. What does it comprise, and how robust is it? Does it contain, as Nicholson recommended, “instruction in good and acceptable judicial behaviour”? Perhaps all boards and all clerks should read Epic, reread Nicholson and consider if there is scope for improvement. The licensed trade is vital to Scotland’s economy. It pays a great deal of money to maintain the licensing system. Perhaps it deserves better than it has just now.

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

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