Pub which lost licence after drug use incidents fails in appeal against revocation

The appellants claimed that the licensing board had failed to take account of and disclose a licensing standards officer’s (LSO) report into the premises, but judges in the Inner House of the Court of Session refused the appeal after ruling that it was “tolerably clear” that the report was taken into account and that there “no duty on the respondents to disclose the report as a matter of fairness or natural justice”.

In the appeal by Trust Innes Ltd under section 132(6) of the Licensing (Scotland) Act 2005 against the revocation of a premises licence in respect of “The Scotch” bar in Summerston, Glasgow, the Lord Justice Clerk, Lord Carloway (pictured), sitting with Lady Dorrian and Lord Drummond Young, heard that a premises licence review application was submitted by Police Scotland to the City of Glasgow Licensing Board in June 2013 following several incidents in the premises.

During the period January 2012 to March 2013 there had been three “interventions” at which the police, representatives of the appellants, the LSO and others had met and discussed various mechanisms designed to resolve the perceived problems, but further incidents had occurred despite recommended actions having been agreed.

The police sought a review on the basis that the appellants were either “unable or unwilling” to operate the premises in line with certain of the licensing objectives set out in section 4 of the Act, namely preventing crime and disorder, securing public safety, and preventing public nuisance.

The respondents intimated the application to the local LSO, whose report advised that the details given concurred with the information held in their records, and following a review hearing the respondents revoked the licence under section with immediate effect.

In July 2013, the respondents issued a detailed statement of reasons, which considered that the continued pattern of drugs misuse within the premises was serious, significant and demonstrated a clear and considerable departure from the reasonable and proper standards to be expected in the operation of licensed premises.

It noted that the police had deemed it necessary to make 170 visits to the premises over an 18-month period and stated that the seriousness of the circumstances, in which the premises were “the biggest problem to the police” in the local area, meant that anything short of revocation of the licence would continue to compromise severely the licensing objectives identified.

An appeal against the decision to revoke the licence was refused by a sheriff, prompting the appeal to the Inner House, where the appellants argued that the respondents had failed to take account of the LSO report and had thereby erred in law.

They also maintained that the respondents had failed to disclose the LSO report to the appellants. In other words, esto the respondents had taken the LSO report into account, they had breached natural justice in so doing because it was material upon which the appellants had not been given the opportunity to comment.

The appellants sought disposal by way of a remit to the respondents with guidance that the respondents ought to take account of the up to date position, that the circumstances had improved, the premises had traded for some 16 months under a new tenant, and that it had been indicated that a new licence application would be viewed favourably by the police.

It was accepted by the respondents that there was no reference to the LSO report in the respondents’ statement of reasons. However, there had been no duty upon the respondents to do so, or to give any particular weight to it. What was necessary was to have regard to the substance of the decision rather than matters of pure form.

The report had not been favourable to the appellants, but ultimately it had no material bearing on the respondents’ decision and the sheriff had been correct to reject the appellants’ argument, it was submitted.

Refusing the appeal, the judges ruled that the respondents had not failed in respect of any statutory duty of disclosure to the appellants in respect of the LSO report.

Delivering the opinion of the court, the Lord Justice Clerk said: “The statutory requirement is that the respondents must take the report into account. Where it has done so, the report itself may feature in the statement of reasons only where it has been the vehicle by which substantive issues are uniquely raised. In the present case, the report merely supported certain facts which were set out elsewhere and were not, in any event, in dispute. It did not raise any distinct facts or other matters in controversy.

“The respondents had regard to the material facts, and there was no purpose to be served by making a specific reference to the report itself. Accordingly, the appellants’ contentions concerning disclosure and any failure to take proper or explicit account of the report’s terms are rejected. The sheriff’s reasoning in this regard was clear and sound. The appeal is accordingly refused.”