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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Strathclyde Police v. North Lanarkshire Licensing Board [2003] ScotCS 255 (08 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/255.html Cite as: [2003] ScotCS 255 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Osborne Lord Hamilton Lord Weir
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XA75/02 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Airdrie by THE CHIEF CONSTABLE OF STRATHCLYDE POLICE Pursuer and Appellant; against NORTH LANARKSHIRE LICENSING BOARD Defenders and Respondents; and JANE HENVEY MILLAR Minuter: _______ |
Act: Sir Crispin Agnew of Lochnaw, Q.C., Messrs Simpson & Marwick, W.S.
Alt: Mrs Wolffe, Messrs Shepherd & Wedderburn, W.S.
8 October 2003
The background to this appeal
[1] The minuter in these proceedings was the holder of an entertainment licence in respect of licensed premises known as Garfields, 26 Sunnyside Road, Coatbridge. She made an application for renewal of that licence which came to be considered at a meeting of the defenders and respondents held on the 12 October 2001. The pursuer and appellant objected to the renewal of the licence in question in terms of section 16(1)(d) of the Licensing (Scotland) Act 1976. The objections were set forth in a letter, dated 26 September 2001, from the appellant to the Department of Administration of North Lanarkshire Council, which provided clerking services for the respondents. A copy of that letter was sent to each of the minuter and her solicitor. The objections were made in terms of section 17(1)(a) and (c) of the 1976 Act and were to the effect that the minuter was not a fit and proper person to be the holder of a licence, and that the use of the premises for the sale of alcoholic liquor was likely to cause undue public nuisance, or a threat to public order and safety. In the objections themselves, attention was drawn to nine separate incidents which, it was contended, constituted misconduct on the part of the minuter as the holder of the licence, in terms of section 17(1)(a) and misconduct on the part of persons frequenting those licensed premises, or in their immediate vicinity, in accordance with section 17(1)(c) of the 1976 Act. Several of the incidents specified in the objections involved young persons under the age of 18 years, in one case as young as 14 years. While the nature of each incident was specified in a paragraph of the objections, the identities of the young persons involved were not disclosed. The detailed grounds of objection were as follows:"About 0130 hours on Saturday 22 July 2000 Police Offices were on duty outside the premises when they were stopped by a female, aged 16, who was well under the influence of alcohol. This person stated that she had been drinking alcohol within the premises with her sister, aged 15, who was still within the premises. Police assistance was given and the 15 year old removed from the premises. She too was under the influence of alcohol. Both girls were warned. They stated that they were regular patrons to the premises, although refused to provide statements. The Licensee Mrs. Millar was not present. She was invited to Coatbridge Police Office on Thursday 23 August 2000 where she was given a warning, which she accepted. No charges were preferred.
About 0050 hours on Saturday 28 October 2000 Police Officers attended at the premises for a routine visit. Mrs. Millar was present. Whilst within the premises they identified two males who appeared to be under the age of 18. Both were observed by Police Officers drinking alcohol, namely lager. They were interviewed and their ages were ascertained as 17. Again they refused to supply statements. They were removed from the premises. A check of the female toilets found a female, who was obviously under the age of 18 and well under the influence of alcohol. Her age was ascertained as 15 and she was requested to leave the premises. She refused and on being arrested assaulted one of the Police Officers present. As a result of this incident a report was forwarded to the Reporter's Office detailing charges of contravention of the Licensing (Scotland) Act 1976 Section 79(1)(a), and the Police (Scotland) Act 1967 Section 41(1)(a).
About 0132 hours the same day staff reported a large scale disturbance within the premises. On the arrival of the Police no disturbance was taking place, although chairs had been overturned and numerous bottles and glasses had been smashed on the floor. At the request of the staff the premises were emptied by the Police and then closed. It appears that the disturbance took place as a direct result of an announcement by staff that in future no person would be admitted without identification. Mrs. Millar was present. As a result of this incident 1 person was arrested inside the premises for Breach of the Peace, and another arrested outside for Breach of the Peace as well as a contravention of the Criminal Law (Consolidation)(Scotland) Act 1995 Section 47. Two reports were forwarded to the Procurator Fiscal on Wednesday 1 November 2000. Mrs. Millar was again invited to Coatbridge Police Office where a Senior Police Officer's Warning was administered. This warning she also accepted.
On Monday 19 March 2001 the Police at Coatbridge received a complaint regarding the premises from the parents of two 16 year old youths. Enquiry ascertained that these youths had on Saturday 10 March 2001 purchased and consumed alcohol, namely lager and 'Smirnoff Ice' within the premises. Their statements were obtained and further enquiry also ascertained that a 14 year old female had on the same evening been within the premises and that she too had consumed alcohol, namely 'Smirnoff Ice'.
This female was interviewed and admitted that this was true. She stated that she had also visited the premises on three prior occasions when she had consumed alcohol. From the information provided it appears Mrs. Millar was present on at least one of these occasions. It was not possible to note her statement. As a result of these allegations Mrs. Millar is the subject of a report to the Procurator Fiscal for two contraventions of the Licensing (Scotland) Act 1976 Section 68(1).
About 0205 hours on Saturday 21 April 2001 Police Officers observed a crowd of youths leaving the premises. Two of these youths began to fight in the street and were arrested for Breach of the Peace. Their ages were ascertained as 16. Both were well under the influence of alcohol. When interviewed one freely admitted to being within the premises and to consuming alcohol. Both refused to supply statements. It is unknown if Mrs. Millar was present within the premises on this occasion. As a result of this incident two persons were reported to the Procurator Fiscal for Breach of the Peace.
About 0045 hours on Sunday 13 May 2001 staff at the premises reported that one of their stewards had been assaulted. Mrs. Millar was present. Police attended and traced four youths nearby who were detained. All were again well under the influence of alcohol. On being interviewed it was ascertained that three were aged 17. All three freely admitted that they had been within the premises and that they had purchased and consumed alcohol. They refused to supply statements. No charges were preferred.
About 2325 hours on Friday 25 May 2001 a Police Close Circuit Television Camera Operator within Coatbridge Police Office saw a male person enter the premises carrying a child aged approximately 6 months old. The identity of the male and child could not be ascertained and no charges have been preferred.
About 2345 hours on the same day police officers attached to the Licensing Department attended at the premises to ensure that the provisions of the Licensing (Scotland) Act 1976 were being complied with. It was noted that 14 persons were present. Mrs. Millar was present. Three persons who appeared to be obviously under the age of 18 and who were consuming alcohol, namely lager and 'Smirnoff Ice' were interviewed. It was ascertained that two of these persons were 16 and one was 17. Four persons also supplied false details to the Police. All of these persons were well under the influence of alcohol. As a result of this incident reports have been forwarded to the Procurator Fiscal. These reports detail three charges of a contravention of the Licensing (Scotland) Act 1976 Section 68(2), and four charges of Attempting To Pervert The Course of Justice. Mrs. Millar is also the subject of a report to the Procurator Fiscal detailing 3 charges of a contravention of the Licensing (Scotland) Act 1976 Section 68(1).
About 0210 hours on Sunday 3 June 2001 a male person was assaulted by being struck on the head with a bottle shortly after leaving the premises. A disturbance involving number of persons then took place immediately outside the premises. As a result of this incident 1 male aged 16 years will be reported to the Procurator Fiscal for Assault and Breach of the Peace."
In the concluding part of the objections, the appellant's representative wrote in these terms:
"Bearing these allegations in mind, it is the Chief Constable's assertion that the aforesaid behaviour on the part of the Licensee, Mrs Millar, shows clear misconduct on her part. Such misconduct is inconsistent with the notion that she now can be regarded as a fit and proper person to be the holder of the licence.
It is also the Chief Constable's assertion that there has been clear misconduct attributable to other persons, both within the premises and in its vicinity. Such misconduct has caused undue public nuisance and should be regarded as a threat to public order and safety.
It is submitted that, given all the circumstances, it would be in the public interest to refuse the application for this licence.
I would remind you that should Mrs Millar, or her legal representative require further information or clarification then they should not hesitate to contact officers of my Licensing Department who will assist in any way possible."
The submissions
[3] At the outset of the hearing of the appeal before us, we were reminded that, while doubts had been expressed as to whether the appeal raised live issues, the court had decided that it did. The background to that concern had been that the licensed premises were owned by a limited company, which had gone into liquidation. In consequence, trading was not currently continuing there. However, it was open to the liquidator of the owning company to sell the premises; the licence pertaining to them might then be exercised. Accordingly, the issues raised in the present appeal were not academic. [4] Senior counsel for the appellant, in introducing his submissions, said that two important matters of practice were involved. If the sheriff were correct, the practice followed by the appellant in relation to licensing matters generally would require to be changed. These particular matters of practice were, first, the issue of whether young persons required to be named in objections lodged by the appellant, and, secondly, the issue of the significance of non-statutory warnings issued by the appellant to licensees. Matters of law were involved in the appeal relating to the weight to be given to non-statutory warnings and the matter of the onus in relation to objections. The sheriff had held that the respondents were correct in concluding that the appellant's objections were lacking in specification, although they had been accepted as competent objections. Senior counsel for the appellant indicated that he would be moving the court to remit the case to the sheriff with a direction that it should be remitted to the respondents with the court's guidance on the legal issues. [5] In elaborating the appellant's position, senior counsel submitted that three important questions arose: (1) how much information did the appellant require to give in a letter of objection, in particular, in relation to the identities and addresses of young persons who had been under age drinkers; (2) what weight should the respondents have given to a formal warning delivered to the minuter, as licence holder; (3) where did the onus lie in relation to an objection such as that involved here. [6] The appellant's letter of objection contained details of nine separate and serious incidents of breach of licensing law. The objections were, of course, to an application for renewal of the licence in the name of the minuter. It had to be understood that there had previously been a complaint at the instance of the appellant giving rise to a suspension hearing. The incidents founded upon were spread over a period of eleven months. They involved instances of regular under age drinking. Warnings had twice been given by the appellant to the minuter in respect of these matters. The manner in which the respondents had treated the appellant's objections was difficult to understand. If they were dissatisfied with the level of information provided in the objections, the hearing ought to have been adjourned to enable that problem to be remedied. It was explained that, as letters of objection were normally read out publicly at hearings on applications and otherwise given wide circulation, it was the policy of the appellant not to insert names and addresses of under age drinkers in objections out of considerations of fairness to the individuals involved. Section 47 of the Criminal Procedure (Scotland) Act 1995 imposed restrictions on reporting of proceedings involving persons under the age of 16. While those provisions had no formal application to the circumstances of this case, the appellant sought to adhere to the spirit of those provisions when dealing with incidents involved persons who were children. An important factor in the present case was that, in the letter of objection dated 26 September 2001, the appellant had invited the licence holder to make a request to his officers for any further information about the subject matter of the letter, should that be required. The minuter had not availed herself of that offer. [7] Senior counsel for the appellant next proceeded to examine the incidents referred to in the objections in detail. Incident no. 7 did not involve any criminal offence and had not been pressed at the hearing before the respondents. What emerged was that over a period between 22 July 2000 and 3 June 2001 there had been regular and serious incidents involving under age drinking. On more than one occasion, the licensee herself had been present when persons who were obviously under age were present. Formal warnings had been given to the licence holder, which she had accepted by signing the documents involved. [8] In J.A.E. (Glasgow) Ltd v City of Glasgow District Licensing Board 1994 S.L.T. 1164, the court had explained the position of a licensing board in the context of disputed facts. Although it was competent for a licensing board to hear evidence, they had a discretion to proceed on any type of material which had a bearing on the question which they had to decide, including the submissions of the applicant and any objection made in writing or verbally, and although the board's discretion was subject to the overriding requirements of natural justice, the mere fact that the board had decided to proceed upon one type of material and not upon another would not of itself indicate a failure to comply with the requirements of natural justice, provided that the board had not denied a party that equality of treatment which was involved in the right to a fair hearing. What had occurred in the present case was that the minuter had not denied the incidents founded upon by the appellant; there was simply advanced the claim that the licence holder was prejudiced by the limited information provided in the objections. In accepting that position, the respondents had ignored the invitation contained in the last paragraph of the objections. [9] Senior counsel for the appellant next proceeded to examine the respondents' statement of reasons in detail. It was plain from those reasons that they had erred in a number of respects. In particular, in relation to paragraph 8, it was not sufficient for the licensee to arrange for the exclusion of "persons who appeared to be under 18 years". The law required that persons who were in fact under the age of 18 years should not be served with alcoholic beverages. The minuter's practice of relying simply on the apparent ages of those seeking to be served betrayed a failure to put in place an effective system for verifying ages. In the same part of the statement of reasons, the respondents appeared to accept that the minuter was unable to obtain sufficient details about the alleged incidents to equip herself properly to respond to them. However, in reaching that position, the defenders had completely ignored the invitation at the end of the objections already referred to. In paragraph 11 of the reasons, it was narrated that the contention had been advanced on the minuter's behalf that the licence holder was complying with the law, if a potential customer appeared to be 18 years of age. That contention, which the respondents appeared to have accepted, was erroneous. In paragraphs 15 and 16 of the reasons it was narrated that the appellant's agent had submitted that enough information had been given to the licence holder to enable her to identify the incidents founded upon. That submission was correct, but apparently had been rejected by the respondents. In paragraph 20 of their statement of reasons, they had set out their determination in relation to the submissions made to them. The respondents had concluded that there was an onus on the appellant to substantiate his objections. What the respondents had done was then, on account of the alleged lack of specification of the objections, to ignore them. That was plainly erroneous. It was also particularly unreasonable in respect that, in the case of some of the incidents founded upon, the minuter had actually been present on the occasions in question. That state of affairs had been ignored by the respondents. Their erroneous approach to their decision became evident in the last two un-numbered paragraphs in paragraph 20 of the statement of reasons. It was submitted on behalf of the appellant that, once relevant objections had been spoken to, as had occurred here, there was a practical onus upon the applicant to produce an explanation of the incidents founded upon in the objection consistent with her proper position as licence holder. If further information were needed to enable that to be done, the licence holder had a duty to acquire it by asking the police for what she required. It was emphasised that this submission did not relate to a legal onus, which the statute did not impose upon a licence holder. The lodging of the objections had created a practical onus on the licence holder to rebut the inference which, in the absence of an explanation, arose from the ground of objection. In saying, as they had in effect done in paragraph 21 of the statement of reasons, that there was no practical onus on the minuter to undertake any investigation in relation to the incidents founded upon, the respondents had misdirected themselves. In that same paragraph, they had accepted the minuter's explanation that she had simply accepted the terms of the warning given to her by the police "in order that the matter could be over with". That position was plainly wrong. Where the terms of the warning had been accepted by the minuter and her acceptance vouched by her own signature, proper weight should be given to that circumstance. In paragraph 22 of the statement of reasons, the respondents' error was manifest. Dealing with the contents of paragraph 23 of the statement of reasons, senior counsel for the appellant made clear that his client was not pressing the appeal in so far it related to an objection founded upon section 17(1)(c) of the 1976 Act, since that aspect was supported by only a few incidents. [10] Senior counsel for the appellant then turned to vouch what he contended was the legal background by reference to certain authorities. In Glasgow District Licensing Board v Din 1995 S.C. 244 it had been held that there was no onus upon the applicant for a licence to show that he was a fit and proper person to be a licence holder, which was accepted. However, the existence of a practical onus upon an applicant, where objections had been lodged to the application, was made clear in McAllister v East Dunbartonshire Licensing Board 1998 S.L.T. 713 at pages 719 to 720. In Allied Domecq Retailing Ltd v City of Glasgow Licensing Board 1999 14 S.L.L.P. 12, similar views emerged at page 29; where criticisms were raised of the conduct of an applicant, it behoved the applicant to investigate the matter complained off and lay an explanation before the board. In the light of these cases, it was submitted that it was not open to an applicant, such as the minuter, to do nothing and to assert that it was the responsibility of the appellant to prove his case. [11] Senior counsel for the appellant then turned to make submissions concerning the effect of the warning given to the minuter. It was apparent from the statement of reasons that the respondents had dismissed this as being of no weight. In that connection reference was made to Nottingham City Council v Mohammed Farooq [1998] E.W.H.C. Admin 991. It was submitted that the warning involved here was important. It was accepted that the warning and the acceptance of it did not amount to an acceptance of the allegations made in it, although it was an acceptance that a warning had been given regarding future conduct. The fact was that the respondents had disregarded the warnings given. They amounted to material which should have been taken into account; what weight was to be given to them was a matter for the respondents. [12] Senior counsel for the appellant next proceeded to examine the opinion of the sheriff. His reasoning commenced from paragraph 13 at page 36 of the print. The sheriff appeared to accept that it would have been appropriate for the minuter to investigate the untoward incidents which had occurred, referred to in the objections, but then he withdrew from that position, as appeared from what was said in paragraph 13. The sheriff had fallen into the same error as had the respondents. If they thought that, in some way, the minuter was prejudiced in dealing with the contents of the objections, the rational course would have been to grant an adjournment so that the matters in issue could have been investigated on behalf of the minuter. That had not been done. [13] In all the circumstances, the appeal ought to be allowed. The court should remit the case to the sheriff with a direction that he should remit it to the respondents to reconsider the application of the minuter for renewal of the licence in the light of correct principles. It was however recognised that there might be certain practical problems involved in asking the respondents to reconsider the minuter's application for renewal in the present circumstances affecting the premises. [14] Counsel for the respondents moved the court to refuse the appeal. She began her submissions by drawing attention to certain authorities not cited previously and to different parts of those that had been. In Cigaro Ltd v City of Glasgow District Licensing Board 1982 S.C. 104, at pps.111-112 it was made clear that a licensing board had a considerable latitude of discretion as to how it should handle applications and objections before it. Such a board was not bound to hear evidence. It might do so, but that was entirely a matter within its discretion. It did of course have a duty to act fairly and in accordance with the principles of natural justice. Reference was also made to J.A.E. (Glasgow) Ltd v City of Glasgow District Licensing Board, which showed that any licensing board was master of its own procedure, but owed a duty to act fairly. It was submitted that the assessment of evidence and other material put before a licensing board was pre-eminently a matter for the board, as appeared from Ranachan v Renfrew District Council 1991 S.L.T. 625 and Hughes v Hamilton District Council 1991 S.L.T. 628. In the present case it was wrong to say that the respondents had disregarded the letter of objection from the appellant; they had not done that, but had given elements of the objections little weight. If that characterisation of the position were correct, then the appellant's submissions were misconceived. [15] It was pointed out that the present appeal was one on a point of law. It followed that it would not be enough that the court might disagree with the respondents' assessment of the material put before them. There had to be identified an error of law, or Wednesbury unreasonableness, or the taking into account of irrelevant material, or the neglect to take into account relevant material. In this connection our attention was drawn to Tesco Stores Ltd v The Secretary of State for the Environment [1995] 1 WLR 759; and McAllister v East Dunbartonshire Licensing Board. It was submitted that it was necessary for the respondents to have been able to find some level of culpability on the part of the minuter in the letter of objections before weight could be given to it. In only two of the incidents described in the letter of objection was there any reference to the licence holder's personal presence at times when customers appeared to be under age. If the police adopted the approach involved here, they opened themselves up to criticism of their position. While the appellant's objections might have been held to have been competent and relevant, it did not follow that they were determinative of the application. It was accepted, in answer to a question by the court, that the minuter had not sought details concerning the incidents narrated in the letter of objections from the appellant, or his subordinate officers. Albeit that that had been the position of the minuter, it was still open to her to claim that she was prejudiced by the lack of specification as regards those involved in the incidents referred to in the letter of objection. In paragraphs 20 and 21 of the statement of reasons, while the respondents had been much concerned with issues of prejudice to the minuter, they had assessed the weight properly to be given to the letter of objection. In answer to a question by the court, counsel for the respondents accepted that, if their approach to the issue of prejudice was Wednesbury unreasonable, then it might be that their decision could not stand. Despite the terms of the first sentence of paragraph 22 of the statement of reasons, the issue of prejudice and of onus was fundamental to the respondents' decision. [16] Turning to the second issue related to the warning given to the minuter, it was pointed out that this matter had not been argued before the sheriff. It had to be understood that a warning could not be seen as equivalent to a previous conviction. The minuter had accepted that a warning had been given to her. The details of that warning had not been put before the respondents for their consideration. In any event, the warning related to matters which were allegations, as opposed to established facts. It had not been founded upon by the appellant in the hearing before the respondents. In all these circumstances it was submitted that the warning possessed no real significance in the context of the case. The case of Nottingham City Council v Mohammed Farooq had been founded upon by the appellant, but it provided no real assistance. It was concerned with the implications of convictions. [17] In relation to the issue of the level of detail provided by the appellant in the letter of objections, some reliance had been placed on the provisions of section 47 of the Criminal Procedure (Scotland) Act 1995. It had to be emphasised that no argument related to that enactment had been advanced at the hearing before the respondents. In any event, the enactment in question had no direct application to the circumstances of this case. Further, a way of giving the relevant information concerning the identities and addresses of young people could have been devised by the appellant so that their details were kept out of the public domain. [18] It was emphasised that there was no onus upon the minuter to take steps to prove her fitness to hold a licence. It was odd for the appellant to suggest that the respondents should have sought specification concerning the matters set forth in the letter of objection, or continued the application for that purpose. It would have been unusual for them to adjourn the application ex proprio motu. The position was that the respondents were not bound to accept ex parte statements of the appellant. [19] Counsel for the respondents went on to deal with the issue of the relevance of the statutory defences set forth in section 71 of the 1976 Act. That section provided a defence in relation to an allegation made under inter alia section 68(1) of that Act. The defences provided were (a) due diligence; and (b) proof that the licence-holder had no reason to suspect that the person in relation to whom the charge was brought was under 18. The appellant had argued that these statutory defences were not relevant. It was accepted that that position was strictly correct, but the issue of the licence holder's fitness and the issue of whether offences under the Act had in fact been committed were related. Baxter v Central Fife Divisional Licensing Board (15 April 1999) (unreported) indicated that a licence holder did not have an absolute duty to avoid the commission of offences, as appeared from pps.2, 3 and 5 of Sheriff Keane's judgment. This showed that the statutory defences created by section 71 of the 1976 Act were relevant in the present context. [20] In assessing whether the decision of the respondents was unreasonable in the Wednesbury sense, the court would require to ignore the appellant's policy, based upon section 47 of the Criminal Procedure (Scotland) Act 1995, since that particular matter had not been brought to the attention of the respondents. However, it was accepted that that matter was raised in the grounds of appeal before the sheriff. Nevertheless, a finding of Wednesbury unreasonableness could not properly be made in the light of all of the circumstances known to the respondents. It was submitted that they had made a decision which was properly within the realm of their own discretion. [21] Senior counsel for the appellant replied briefly, drawing our attention to McDowall v Cunninghame District Council 1987 S.C. 217, a case in which the relevance of criminal convictions of an applicant was considered. The minuter did not appear and was not represented before this court.Decision
[22] In view of the nature of the submissions made to us, we think that it is appropriate, in the first instance, to make some brief observations upon the scope of the discretion possessed by the respondents in dealing with an application such as that involved in this case. In J.A.E. (Glasgow) Ltd v The City of Glasgow District Licensing Board an issue arose as to the nature of the material upon which a licensing board were entitled to reach a decision. At p.1171 of the report, Lord Cullen made the following observations, with which we respectfully agree:".... I was not persuaded by the respondents' arguments that the implication of the 1976 Act is that a licensing board dealing with an application under section 64, or for that matter any other application under the Act, is not empowered to entertain evidence whether it is oral or written. I considered that there was nothing which would warrant placing such a fetter on the discretion of the licensing board to decide according to the circumstances of the case what type of material they are prepared to entertain. On the other hand, I agreed with the submission that the Act envisaged that the application should be heard and disposed of expeditiously and with a minimum of formality. The board had a discretion to proceed on any type of material which has a bearing on the question which they have to decide. This would include the submissions of the applicant and any objection whether made in writing or verbally.
It has, of course, to be recognised that the licensing board's discretion is subject to any overriding requirement of natural justice. The mere fact that the board decide to proceed upon one type of material and not upon another would not of itself indicate a failure to comply with natural justice."
"We consider that (the material involved in that case to which his Lordship referred) provided the board with material which was relevant to the demand for betting office facilities. It is that material which the board found upon in the written reasons. In our opinion it was for the board to assess the sufficiency and quality of that material. Similarly it was for the board to attach the appropriate weight to the assertion by the applicant of his opinion to the effect that there was a demand for a further betting office in Milngavie. We do not think that any question of misplaced onus arises here. Accepting that there is no onus upon an applicant to take positive steps to establish demand, we are nonetheless of the view that where, as here, a specific objection has been taken on the ground of absence of demand for the creation of further betting office facilities and it has been placed before the licensing board by objectors who have put in written objections in terms of paragraph 11 of schedule 1 to the 1963 Act, it is appropriate for the licensing board to approach the matter on the basis that the applicant has to be respond adequately to the submission, supported by appropriate material that the grant of a further licence would be inexpedient having regard to the demand for the time being in the locality for such facilities."
While these observations were made in the specific context of the application of the Betting, Gaming and Lotteries Act 1963, we consider that they possess force in the context of the handling of an application and objections under the 1976 Act. We take it from this passage that, in a context in which objections to an application have been lodged by a person such as a Chief Constable, supported by prima facie significant material, the licensing board should approach the matter of the application upon the basis that the applicant has to respond adequately to the matter raised in the objections. Putting the matter in another way, while there may be no legal onus upon an applicant in a particular context, where issues of relevance and significance have been raised in objections, there comes into being a practical need for the applicant to deal with those matters by an adequate response. Against this background, we now turn to consider, in the first place, the manner in which the respondents handled the situation which developed following upon the lodging of the appellant's objections, and, in the second place, the manner in which the sheriff has dealt with the submissions made to him regarding the first matter.
[24] It appears that the essence of the respondents' decision is to be found in paragraph 20 and following paragraphs of their statement of reasons. In the latter part of paragraph 20 they say this:"Due to the Board being of the view that it was for the Chief Constable to substantiate his case, the Board did not agree with Mr Campbell's assertion that there was an onus on the licence holder or her agent to approach the police with a view to seeking further information. In the Board's view a properly formulated objection has to give fair notice to an applicant of the various averments that the applicant is required to answer. The Board felt this concept was more pronounced due to the fact that, in the Board's view, there was no legal requirement on an applicant to satisfy the Board that she is a fit and proper person to be the holder of a licence or that the use of the premises for the sale of alcohol is unlikely to cause undue public nuisance or a threat to public order and safety. Whilst the letter of objection contained sufficient specification to constitute a competent complaint, the lack of further information from the objector, whether by ex parte statement or by parole evidence led the Board to conclude that the applicant had suffered prejudice in being denied the opportunity to present a defence or rebuttal, on the grounds of due diligence, to the allegations.
The Board came to the conclusion that neither of the two police grounds of objection had been substantiated after taking into consideration the terms of the police letter of objection and all the submissions that had been made."
"In examining the police letter of objection, in relation to section 17(1)(a) of the 1976 Act, the Board formed the overall impression that there was no evidence of culpability on the part of the licence holder since, in the Board's considered view, it had not been established the licence holder had, in fact, done anything wrong."
"It is perfectly clear that the pursuer's objections fall to be regarded as being both competent and relevant. In my opinion, it is a leap from that proposition to conclude, as a matter of law, that the minuter was under a duty to respond more fully than she did. Agreeing with what was said in the Allied Domecq case that it is appropriate for a licensee to investigate untoward incidents that have occurred, it seems to me that the stage at which some explanation is deemed necessary or the adequacy of an explanation that is proffered are matters for the board. Much is likely to depend on the potency of the allegations advanced by the objecting party. I read the Allied Domecq and McAllister cases as being authorities for the view that such matters fall within the discretion of the licensing board. For the reasons advanced by Mrs MacWilliams, it was open to the board not to regard the allegations it was dealing with as being particularly potent. Accordingly I reject this criticism of the board's reasoning."
In our opinion, the sheriff has erred in law in forming the conclusions which he did in this paragraph of his opinion. In our opinion, in that paragraph, he addressed himself to the wrong issue. In terms of section 39(4) of the 1976 Act, the sheriff may uphold an appeal under that section inter alia only if he considers that the licensing board, in arriving at its decision, "(d) exercised its discretion in an unreasonable manner." The issue before him must have been whether that was or was not the case. The respondents having proceeded in the manner which he has described, we consider that the sheriff should have addressed himself to the reasonableness of that approach, which we consider he did not do. Furthermore, we have difficulty in understanding how, in the circumstances, the sheriff could conclude that "it was open to the board not to regard the allegations it was dealing with as being particularly potent", when in fact the merits of those allegations had never properly been considered at all, on the view that the minuter had been prejudiced by a lack of information.
[29] As regards the submission made to us relating to the formal written warning issued by the pursuer to the minuter, we note that this feature of the case was not dealt with in the opinion of the sheriff. In that situation, we do not consider that it would be appropriate for us to comment upon it in this appeal from his decision. [30] In all of these circumstances we shall allow the appeal and remit the case to the sheriff to proceed in such manner as may be appropriate in the light of any representations which may be made to him by the parties. In that regard, we recognise that there may be certain practical difficulties involved in the making of any remit to the respondents to reconsider the position, deriving from the present status of the premises, to which the minuter's application related.
