Glasgow Sheriff Court has upheld a decision by Glasgow Licensing Board to suspend the premises licence for LIDL at Victoria Road following a failed “test purchase” (Lidl UK GmbH v City of Glasgow Licensing Board, Glasgow Sheriff Court, 4 November 2011). Although the decision to a large degree turns on the particular facts, Sheriff Mitchell in reaching his decision makes some very interesting comments on the operation of the Licensing (Scotland) Act 2005.
The case itself relates to a first test purchase failure, whereupon the police sent a youth into the LIDL premises in order to ascertain whether the premises would conduct proper age checks. The premises failed, as the young person was not questioned as to his age. A second “follow up” test purchase was passed successfully. The current practice with Strathclyde and other police forces (but not all) is to automatically request a review of a licence following one failed test purchase. That is what happened here. There was no indication of any difficulty at the premises whatsoever with the exception of this sole failure. At the review hearing, Glasgow Licensing Board suspended the licence for 5 days. LIDL sought an interim recall of the suspension which was granted, and subsequently lodged a full appeal.
Various submissions were led, including reference to the unreported Co-operative v Inverclyde Licensing Board 2010 in which a suspension following a first failed test purchase was overturned by the court on the grounds that it was not proportionate, and that a written warning should have been sufficient. In the result, Sheriff Mitchell distinguished that case on the basis that the facts were different; and held that a 5 day suspension was proportionate in the circumstances. It is now open to LIDL to take a further appeal to the Court of Session.
What is particularly interesting about this case is some of the general commentary from Sheriff Mitchell on the operation of the 2005 Act, which is even more relevant following the now famous decision in Brightcrew v Glasgow Licensing Board 2011. Part of the argument of the Defenders turned on the Brightcrew point, with Advocate Scott Blair suggesting that “provided a Licensing Board was dealing with matters directly or reasonably related to the sale of alcohol, it [the Board] enjoyed a wide discretion or area of judgement as to what the licensing objectives might require”. That averment appears to have found favour with the Court’s general approach. In this case, the facts unquestionably related directly to the sale of alcohol, however, because it was a failed test purchase.
Sheriff Mitchell also enunciates the legal position on a key area of debate at licensing boards – that is, reviews hearings which often proceed like a criminal hearing, albeit with less formal evidence and no part under oath. At the beginning of his decision, he says: “So far as the 2005 Act provisions relating to review of premises licences are concerned, this wider approach is about taking action which is necessary or appropriate for the purpose of achieving one or more of the licensing objectives, each of which is an expression of public interest concerns. This new statutory process is part of a regulatory scheme which has been devised in the public interest and is not about the determination of criminal law liability, which remains the function of the criminal courts”. This portion of the decision is worth repeating here in full because it asserts the position maintained by licensing lawyers up and down the country that licensing boards should not sit as a quasi-criminal court. That is even more apparent with the Brightcrew decision.
However, Sheriff Mitchell also goes on to say that “the defenders as a Licensing Board have a wider area of discretion under the 2005 Act than was formerly the position under the 1976 Act”. This “wider area of discretion” is not, in my view, an assault on the limitations imposed by Brightcrew on what matters a licensing board can consider relevant in a review, but instead, it is an assertion of the extended powers open to a board having found that it is “necessary or appropriate” to employ those powers flowing from action or inaction by a licence holder, relating to the sale of alcohol, which results in one of the licensing objectives being imperilled in some way.
Under the 1976 Act, the only sanction open to a licensing board to deal with errant licensees was suspension of the licence. Under the 2005 Act, the board can not only suspend a licence for such period as they see fit, but may also issue a written warning, revoke the licence altogether, or vary that licence (which could include, for example, the imposition of conditions, the reduction of trading times and so on). That is the real “wider area of discretion”.
If you would like to discuss any of the issues raised in this article please contact Stephen McGowan.
