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One for the board

14 April 14

Commentary on Trust Inns v City of Glasgow Licensing Board, where the board's decision to revoke a premises licence was upheld

by Tom Johnston, Sylvia Flynn

Early commentaries on the recent case of Trust Inns Ltd v City of Glasgow Licensing Board (Glasgow Sheriff Court, 22 January 2014) suggested that the principles established in the important case of Lidl v City of Glasgow Licensing Board, which has been the subject of previous columns, were in some way being eroded. In fact, if you take the time to read the sheriff’s judgment in Trust Inns, you will see that he was doing no such thing.

The facts in Trust Inns were that the premises had attracted considerable police attention because of persistent drugs-related problems. Three separate police “interventions” had taken place. (As an aside, in the brave new world of Police Scotland, get used to new and wonderful terminology.) It does not seem to have been disputed that at least some of the police grounds for review were factually accurate. A huge raft of measures seems to have been introduced to try to deal with the problem. Under new management, introduced shortly before the review, things seem to have improved.

The board was not impressed, and clearly felt that whatever might have been done, it was too little, too late. There were five months separating the first and last police intervention and a further five months before the police applied for a premises licence review. At the review hearing, the board held that the grounds of review had been established, and decided to revoke the premises licence, citing all five of the licensing objectives, bar public health.

Not another Lidl

The appeal seems to have been pled slightly oddly, with last- minute attempts to amend and, unusually, issues relating to natural justice, with which we will deal later, being argued in various, apparently self-contradictory ways. One of the arguments touched on the Lidl case, where their Lordships in the Division did make reference to suspension having a “corrective”, as opposed to a“punitive” purpose.

The defenders’ argument which prevailed here was, substantively, straight out of Hughes v Hamilton District Council 1991 SC 152 and Latif v Motherwell District Licensing Board 1994 SLT 414. In other words, if the board was entitled to consider the material which it did, the assessment of the weight to be attached is a matter for the board. As Sheriff Reid said, “a substantial part of the present appeal falls within… binding dicta”.

As he pointed out, Lidl is completely irrelevant here. The facts of the two cases are fundamentally different. The board in Lidl was dealing with a suspension; here there was a revocation. The board was held in the present case to have been entitled to find the grounds of review established: in Lidl the opposite was the case. In fact, to analyse Lidl a little more closely, given the fact that the court made a finding that the ground of review had not been established, it could be argued that any dicta on the length and purpose of the suspension were simply obiter.

From the confusing arguments regarding natural justice, one interesting issue arose. The licensing standards officer’s report (which is required in the case of a premises licence review) had not been produced to the pursuer’s agent at, or prior to, the hearing. There is, in fact no obligation to intimate it to the licensee, which is quite scandalous. Something for the draftsman of the new bill, perhaps? We do find it extraordinary that the pursuer’s agent did not ask for a copy from the clerk – this is not something we have ever been refused. We have, however, used the complete lack of any detail on material points as justification for seeking an adjournment. That can sometimes be a sound tactic. In fact, the LSO’s report seemed to say so little here that it was deemed immaterial.

Finally, this is another salutary tale concerning the risks associated with allowing your landlord clients to hold licences in their own name – how can they possibly exercise the degree of supervision and control which a licensing board is entitled to demand?

Tom Johnston and Sylvia Flynn, Young & Partners, Glasgow and Dunfermline

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