Scottish Sheriff Court Decisions

JUDGEMENT OF SHERIFF McTAGGART in the cause FRANCIS ANDERSON PURSUER against THE SECURITY INDUSTRY AUTHORITY DEFENDERS ____________

Anderson v The Security Industry Authority

B314/10

B316/10

Dumbarton, 8th March 2011

The Sheriff having heard parties in debate on the pursuer's preliminary pleas and having resumed consideration of the cause, sustains; repels the defences and grants decree in terms of crave one of the summary application; certifies the cause as suitable for the employment of junior counsel; reserves the question of expenses and appoints parties to be heard thereon on 1^st April 2011 at 9.45am.

(sgd) Sheriff M MacTaggart

NOTE

The following seven summary applications called before me for debate, namely:-

1.                 B832/09 - ROBERT DEMPSTER SENIOR V S.I.A. - an appeal against revocation of a security industry licence;

2.                 B831/09 - ROBERT RONNEY V S.I.A. - an appeal against revocation of a security industry licence;

3.                 B320/10 - ROBERT DEMPSTER JUNIOR V S.I.A. - an appeal against revocation of a security industry licence;

4.                 B319/10 - BARRY DEMPSTER V S.I.A - an appeal against suspension of a security industry licence;

5.                 B318/10 - BARRY DEMPSTER V S.I.A - an appeal against revocation of a security industry licence;

6.                 B314/10 - FRANCIS ANDERSON V S.I.A - appeal against suspension of a security industry licence;

7.                 B316/10 - FRANCIS ANDERSON V S.I.A - an appeal against revocation of security industry licence.

The facts and arguments surrounding each of these summary applications were almost identical and I am, therefore, issuing one note covering all appeals, making any distinctions where necessary.

The background:-

The background to these appeals is largely undisputed. The Security Industry Authority (SIA) is a statutory body responsible for the licensing of those operating in the Security Industry. The pursuers work within the security industry, all connected directly or indirectly with the firm of Ruchill Security LLP and were the holders of licences issued by the SIA. On 8^th September 2009 the SIA advised the pursuers of its decision to suspend their licences with immediate effect and on 9^th September 2009 intimated to them their decision to revoke their licences. The decision to suspend and revoke the licences was based on information contained in two letters sent to the SIA by Detective Superintendent John McSporran of Strathclyde Police dated 11 August 2008 and 20 August 2008. The pursuers now appeal against said revocations and suspensions.

Relevant Statutory Framework:-

The SIA was created by the Private Industry Act 2001. The relevant sections of the Act for the purposes of this debate are:-

Private Security Industry Act 2001

1. The Security Industry Authority

(1)              There shall be a body corporate to be known as the Security Industry Authority (in this Act referred to as "the Authority").

(2)              The functions of the Authority shall be -

(a)               to carry out the functions relating to licensing and approvals that are conferred on it by this Act;

(b)              to keep under review generally the provision of security industry services and other services involving the activities of security operatives;

(c)               for the purpose of protecting the public, to monitor the activities and effectiveness of persons carrying on businesses providing any such services as are mentioned in paragraph (b);

(d)              to ensure the carrying out of such inspections as it considers necessary of the activities and businesses of -

(i)                persons engaged in licensable conduct; and

(ii)              persons registered under section 14 as approved providers of security industry services;

7. Licensing Criteria

(1)              It shall be the duty of the Authority, before granting any licences, to prepare and publish a document setting out -

(a)               the criteria which it proposes to apply in determining whether or not to grant a licence; and

(b)              the criteria which it proposes to apply in exercising its powers under this Act to revoke or modify a licence.

(2)              The Authority may from time to time revise the document for the time being setting out the criteria mentioned in subsection (1)(a) and (b); and, if it does so, it shall publish the revised document.

(3)              The criteria set out by the Authority under this section -

(a)               shall include such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons to engage in such conduct;

(b)              may include such criteria as the Authority considers appropriate for securing that those persons have the training and skills necessary to engage in the conduct for which they are licensed; and

(c)               may also include criteria relating to such other matters as the Authority thinks fit.

(4)              In setting out any criteria or revised criteria under this section the Authority may provide for different criteria to apply -

(a)               in relation to licences for different descriptions of licensable conduct; and

(b)              in relation to the initial grant of a licence and in relation to a further grant to the same licensee for the purpose of renewing an earlier licence.

(5)              Criteria or revised criteria set out under this section shall not have effect for the purposes of this Act unless the Secretary of State has approved them.

(5A) Before giving approval under subsection (5), the Secretary of State shall consult the Scottish Ministers.

(6)              The publication in accordance with this section of any document setting out any criteria or revised criteria must be in such manner as the Authority considers appropriate for bringing it to the attention of the persons likely to be affected by it.

10.             Revocation and modification of licences

(1)              The Authority may by notice in writing to the licensee modify or revoke any licence granted to him (including any of the conditions of that licence).

(2)              In determining whether or not to modify or revoke a licence, the Authority shall apply the criteria for the time being applicable under section 7.

(3)             

(4)              The modifications that may be made under this section include one suspending the effect of the licence for such period as the Authority may determine.

11.             Appeals in licensing matters

(1)              Where -

(a)               an application for a licence is refused,

(b)              a licence granted subject to conditions imposed under section 8(6), or

(c)               a licence is modified or revoked,

the applicant or, as the case may be, the holder of the licence, may appeal to ...the Sheriff against the Authority's decision to refuse to grant the licence, to impose those conditions or, as the case may be, to modify or to revoke the licence.

(5)              A court to which an appeal is brought under this section shall determine the appeal in accordance with the criteria for the time being applicable under section 7.

Authorities referred to:

Pursuer: Magistrates & Council of Edinburgh v Magistrates & Council of Leith (1896) 33 S.L.R 285;

Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309;

Capital Bank v Bulgaria (2007) 44 EHRR 48;

Fischer v Austria (1995) 20 EHRR 349;

Mantovanelli v France (1997) 24 EHRR 370;

Dombo Beheer BV v Netherlands (1994) 18 EHRR 213;

Buchberger v Austria(2003) 37 EHRR 13;

Alastair Richardson & Ors v Lynda Rivers - Decision of Sheriff Principal McPhail dated 23^rd August 2004, BAILII: [2004] ScotSC 55;

Glasgow Corporation v Central Land Board 1956 SC (HL) 1;

Rowe & Davis v UK (2000) 30 EHRR 1;

Sinclair v HMA (2005) 1 SC (PC) 28 ;

Robert Ronney & Robert Dempster Snr v SIA, judgement of Sheriff Principal BA Kerr QC dated 15^th June 2010;

Private Security Industry Act 2001;

Human Rights Act 1998;

Civil Evidence (Sc) Act 1988;

McPhail: Sheriff Court Practice 3^rd edition

Defender: Grantly Developments v Clydesdale Bank (an unreported decision of Inner House dated 14^th March 2002, BAILII: [2002] ScotCS 66);

Carltona Ltd v Commissioners of Works [1943] 1 All ER 560;

Khan v UK (2001) 31 EHRR 45

Submissions For Pursuer:-

Ms McCall helpfully placed before the court written submissions on behalf of the pursuers and made the following submissions to the court. These were broken down into three main areas:-

1.                 alleged failure to approve the criteria;

2.                 alleged violation of Article 6 ECHR and hearsay; and

3.                 irrelevancy of the letters from Strathclyde Police.

Failure to approve the criteria:-

The defender, the Security Industry Authority (SIA), is a creature of statute, namely the Private Security Industry Act 2001 and this details its duties and powers exercisable under the supervision of the Home Office. Section 7 (1) of the Act provides that the SIA has a duty to prepare and publish a document setting out the criteria which it proposes to apply in determining whether to grant a licence or in exercising its powers to revoke or modify a licence. The criteria to be applied has to be the current criteria and this is the same criteria which the court has to apply in dealing with appeals of this nature. Criteria were published in September 2008 and again in April 2010 in a booklet entitled "Get Licensed". However, in the pursuers' submission neither set of criteria have been approved by the Secretary of State as required by the section 7 subsections (5) and (5A) of the Private Security Industry Act. In Answer 3 of the revocation appeals the defender avers that the criteria have been approved and refers to a letter from Kenny McAskill dated 21^st August 2008. This however, it was submitted, cannot amount to approval in terms of the statute. Mr McAskill is a Minister in the Scottish Government and is not the Secretary of State. The SIA has been called upon to produce proof of the approval but has not done so. No form of approval is publicly available for inspection and therefore any new licence holder is not able to establish what criteria, if any, are in force. This, in Ms McCall's submission is a matter of law not simply a matter of fact. The question may arise as to whether there is a rebuttable presumption at play, ie the pursuers must establish non-approval. However it was submitted that there appeared to be no apparent reason why approval could not be produced, if it indeed existed. Ms McCall accepted that it does not necessarily require a statutory instrument to approve the criteria but there ought to be something. This is a hearing de novo on the merits of the suspension and revocation of these licences. The court requires to comply with the statute and the court must be satisfied which criteria are applicable. It is necessary to identify which, if any, criteria are in force at the time of the appeal and therefore the court must resolve the issue of approval before the court can determine the merits of the appeal. If there are no criteria in force then the court must grant the appeal. The court therefore has to resolve this issue at the outset. The defender may argue that publishing the criteria and acting upon it amounts to a demonstration of approval but this cannot be correct according to the terms of the statute. If the SIA are acting without approved criteria then they are acting unlawfully. It is therefore for the authority to establish that the criteria are approved and they have failed to do so.

Further, in light of the decision of Sheriff Principal Kerr (Appeals B831/09 and B832/09) that the court should deal with the matter de novo the court must be satisfied what criteria are in place at the time of the appeal - this is a matter of law, not a matter of fact, and should not be left to proof. If however, the pursuers are wrong in this regard, the issue should still not be left to proof. The defender's pleadings in this regard are wholly unsatisfactory. Despite concerns expressed by Sheriff Fraser at an interim stage in cases B831/09 and B832/09 no amendment has been made to demonstrate that approval was obtained. The pleadings as they stand would allow the defender to lead evidence only on the letter from Kenny McAskill. No evidence would be allowed regarding any other documents and therefore the only allowable evidence would be of consultation with the Scottish Ministers. Approval can take a number of forms, but whichever form it takes it must be ascertainable in some way. (Magistrates & Council of Edinburgh v Magistrates & Council of Leith (1896) 33 S.L.R 285. where approval for the erection of a hospital was held to be adequately issued within a council minute.)

In summary, if the criteria have not been approved there are no criteria applicable which would allow the court, on a de novo basis to suspend or revoke these licences. In such circumstances decree as first craved should be granted in favour of the pursuers.

Alleged violation of Article 6 and hearsay:-

The pursuers' submissions were divided in to:-

·       violation of Article 6 - admitting the letters from the police as evidence and relying on them to fulfil the criteria for suspension or revocation would result in a breach of ECHR Article 6 (1);

·       inadmissible hearsay - the letters are inadmissible under the rules prohibiting hearsay evidence.

Article 6(1) submission:

The pursuers submit that the SIA is a public authority in terms of the Human Rights Act 1998. Section 6(1) thereof states -

"It is unlawful for a public authority to act in a way which is incompatible with a convention right."

Article 6 of the European Convention of Human Rights (ECHR) states -

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

Article 1 of Protocol 1 of ECHR states -

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law."

In this case the security licences are held by individuals. For a firm such as Ruchill Security all those involved in the running of the business require to be licensed. As a firm they have an annual turnover of between £2 - £3 million. As a consequence of the suspension and revocation of the licences by the SIA the pursuers cannot work and have had to close down the limited liability partnership and assign all of their contracts to another company of which none of the pursuers are directors. These proceedings by the SIA were directly decisive of their right to run that security business. Ms McCall referred the court to the cases of Tre Traktorer Aktiebolag v Sweden, Capital Bank AD v Bulgaria and Fischer v Austria. The Tre Trakoter case concerned the revocation of a licence to sell alcohol. At page 8 para 36 the court states -

"Article 6(1) extends only to disputes ('contestations') over 'civil rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law. The two questions to be answered by the court are thus: whether there was a dispute over a 'right' and whether this 'right' was of a 'civil' nature."

At para 37

"As to the existence of a dispute over a right within the meaning of Article 6(1) the court refers to the principles enunciated in its case law. In particular, the dispute must be genuine and of a serious nature; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise and, finally, the result of the proceedings concerning the dispute at issue must be directly decisive of such a right."

In the pursuers' submission Article 6(1) is accordingly in point and is invoked. The revocation of such a licence is precisely the type of thing with which Article 6 is concerned.

The right to a fair hearing under Article 6(1) envisages a sense of fair balance between the parties and encompasses the right to equality of arms. In Mantovanelli v France the court stated at para 46 -

"The Commission recalls here that anyone who is a party to civil proceedings 'shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent."

In Dombo Beheer BV v Netherland the court opined at para.33 -

"...it is clear that the requirement of 'equality of arms in the sense of a 'fair balance' between the parties, applies in principle to such cases as well as criminal cases. The court agrees with the Commission that as regards litigation involving opposing private interests, "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent."

The same conclusion was reached in Buchberger v Austria.

In this case the SIA relied upon the contents of the letters from Strathclyde Police and specifically that dated 11 August 2009. In terms of their pleadings the SIA do not seek to rely on anything other than the contents of these letters. In order to comply with Article 6(1) sufficient information must be made available to the pursuers to allow them to know the case against them. This has not occurred here.

The contents of the letter of 11 August 2009 are generated entirely from entries in the Scottish Intelligence Database. On page 2 under the heading Intelligence the following is stated:-

Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of whom cannot be more fully described, which spans a considerable period of time. (Emphasis mine).

In Ms McCall's submission, this statement must give rise to a presumption that some of the sources can be described. She further submitted that this amounted to a blatant refusal to reveal any specific and relevant details. The SIA have simply incorporated this letter into their pleading brevitatis causa. They have averred no further facts and, importantly, have made no claim of public interest immunity. She referred the court to the case of Glasgow Corporation v Central Land Board. This case is authority for the general principle that, if a claim of public interest is made, the court can then proceed to assess that. The court has discretion whether to accede to that claim or not. However, in this case there is simply a blanket refusal to reveal the source/s of the information contained in the letter from Strathclyde Police and a failure to claim public interest means that the court cannot make that assessment. A fair hearing, therefore, cannot be guaranteed. The pursuers are denied the opportunity of challenging the information or the sources of it.

There is no procedure by which the court, in this case, can assess the validity of the SIA decision to withhold evidence regarding the source of the information contained in the letter. In Rowe and Davis v UK the court recognised that it can be too late to remedy non-disclosure at a later stage. The Pursuers in this case should not be required to pursue this matter further if it is obvious at this stage that there has been a violation of Article 6 or that there will be such a violation and that this cannot be remedied. There is nothing before the court to allow it to counter-balance this evidence as there is simply a blanket refusal to reveal it.

The letter of 11 August 2009 makes no mention of Robert Ronney and the letter of 20 August 2009 contains no allegations at all against him. Further the letter of 11 August 2009 is totally unspecific regarding the allegations contained therein. There can therefore be no true contradictor to the police allegations and therefore no equality of arms.

Ms McCall referred the court to McPhail Sheriff Court Practice, Third Edition, para 9.29

"Enough specification must be given to enable the other party to identify what is being alleged against him and to prepare his case. Any material dates, times and places which ought reasonably to be known to the pursuer should be specified."

This degree of specification is patently lacking from the pleadings in this case.

Counsel then went through the letter of 11 August 2009 in some detail and made a number of observations and criticisms regarding the lack of specification therein. It is therefore appropriate to set out the terms of the letters of 11 August 2009 and 20 August 2009 in detail. The letter of 11 August is written by Detective Superintendent John McSporran and is addressed to the SIA. The letter begins by setting out the details of Ruchill Security LLP and refers to the designated members of the company as being Francis Anderson and Robert Dempster Snr. In then goes on from page 2 onwards to read:-

Intelligence

Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of which cannot be more fully described, which spans a considerable period of time.

Due to a requirement to provide protection to persons or other means used to acquire intelligence, Strathclyde Police would, respectfully, decline to provide details of sources of intelligence based on a consideration of the threat to intelligence sources and particularly to the need to ensure that the safety of any individuals who might constitute such sources is not put at risk of serious injury or even loss of life.

Synopsis of Intelligence in relation to RUCHILL SECURITY LLP (Limited Liability Partnership).

Intelligence indicates that Ruchill's day to day business is orchestrated by Robert Dempster Snr who is supported by his sons

Barry Dempster

Born 05/09/1980

5 Dowanside Road

Glasgow

G12 9YB

and

Robert Dempster Jnr

Born 29/08/1977

3 Langhall Avenue

Crookston

Glasgow

along with their criminal associates, who together acquire security contracts through acts of fireraisings, violence and threats.

Intelligence indicates that Robert Dempster Snr is involved in Serious and Organised Crime, which includes criminality such as firearms, threats, intimidation, fire raising and extreme violence. The designated members of the company are Robert Dempster Snr and Francis Anderson.

Intelligence provides that Ruchill Security has significant rivalries with other criminal security companies operating in the West of Scotland. These rivalries have resulted in fire-raising attacks upon building sites with competition to secure contracts fiercely maintained.

On 29 March 2008 Ruchill Security were providing security at a building site at Culloden Drive Glasgow where as a result of a fireraising a JCB forklift vehicle at locus was destroyed at the cost of approx £50,000. The security guard employed by Ruchill Security at the time of the incident was identified by police officers as being an illegal immigrant and has since been deported. (BE06600308 refers).

Intelligence also provides that Ruchill Security are responsible for fireraisings that have occurred at building sites which has caused damage to the value of hundreds of thousands pounds. (LC01631008, BE04310908). A number of other fireraising have occurred within Strathclyde of which Ruchill Security were providing security and again resulting in costly damage to property. (BE02060908, AD02181008 refers).

Ruchill Security have extensive criminal contacts who undertake intimidation tactics, by means of violence and threats of violence directed toward rival companies in order to secure 'ownership' of a particular construction or building site. Escalation of violence and intimidation between rival criminal security companies causes great concern to Strathclyde police with regards to the ongoing protection of the public.

Ruchill Security has long established links within the North of Glasgow and beyond and as a company they have evolved through several periods of change. Robert Dempster Snr initially registered Ruchill Security Limited on 23 May 1996, with him being the director and Francis Anderson being the company secretary. This company was dissolved on 2 August 2001. On 13 August 1998 Ruchill Security Guards Ltd was incorporated, with Robert Dempster Snr and

Lewis RODDEN (linked to P and B Contracts)

Born 11/12/106

12 Drumbowie View

Cumbernauld

being the directors and Francis Anderson being the company secretary. This company was dissolved on 14 February 2003.

On 24 April 2007, Ruchill Security Ltd Liability Partnership was incorporated again, with Robert Dempster and Francis Anderson named as being designated members.

Ruchill Security have adopted the tactic whereby a site under the control of a rival company is identified and then sign boards displaying the name of the security company are removed from the fencing and replaced with Ruchill signs; this has the effect of creating an escalation in threat and a potential for violence.

On the 17 April 2008 a joint operation between Strathclyde Police and The Border and Immigration Agency conducted a number of visits to building sites within the Strathclyde area which resulted in five illegal immigrants being identified. Ruchill Security were providing security at these sites. On visiting a number of other sites controlled by Ruchill Security the police found that the building sites had been left unprotected and the security huts had been deserted by the guards and it is believed that these guards were also illegal immigrants and had been warned of the imminent action of Strathclyde Police.

Synopsis of Intelligence in relation to the DEMPSTER family

Robert DEMPSTER

Robert Dempster Snr is documented on the Scottish Intelligence Database as being significantly involved in Serious and Organised crime.

Robert Dempster Snr has a history of criminal activity in the North of Glasgow and is documented as being involved in the supply and distribution of controlled drugs and money laundering. He has an extensive network of criminal associates, several whom operate within the security business.

Intelligence provides that Robert Dempster Snr has ready access to firearms through his criminal associates.

Following receipt of intelligence relating to threats of violence, Strathclyde Police have given 2 Threat to Life Warnings to Robert Dempster Snr. These threats are of a violent nature and as such are taken seriously by Strathclyde Police.

Throughout the period of his ownership of Ruchill Security, Robert Dempster Snr has been involved with bitter rivalries with other security companies owned and operated by other Glasgow based criminals for the lucrative trade in providing services to building and construction sites.

Barry DEMPSTER

Barry Dempster is documented on the Scottish Intelligence Database. He is linked to Serious and Organised Crime through his involvement within Ruchill Security.

Intelligence indicates that Barry Dempster holds a prominent position within the security company and represents Pegasus, which is a linked company, which sub-contracts work on behalf of Ruchill. Barry Dempster undertakes the ground work on behalf of Ruchill/Pegasus, attending suitable sites and offering security services where offers are declined acts of vandalism have taken place (AC02340109 refers).

Barry Dempster has, along with this father and his brother Robert Jnr been the subject of threats as a result of an ongoing feud between rival security companies. These threats range from violence, threats with firearms to the escalation of fire-raising attacks at sites operated throughout the region.

Intelligence provides that both Barry Dempster along with Robert Dempster Jnr were attempting to source firearms.

Robert Dempster Jnr

Robert Dempster Jnr is documented on the Scottish Intelligence Database. He is linked to Serious and Organised Crime through his involvement within Ruchill Security and as such has strong associations with other Strathclyde based criminals.

Together Robert Jnr and Barry Dempster carry out the day to day running of Ruchill/Pegasus Security on behalf of their father Robert Dempster Snr.

Robert Dempster Jnr has also been the subject of threats from rival members of Organised Crime Groups, which has included use of firearms. Ruchill are well established within the West of Scotland, members of Ruchill including Robert Jnr have in the past formed associations with criminal links in London, this with a view to establishing Ruchill in the capital, although to date this does not seem to have materialised.

Francis Anderson

Francis Anderson is documented on Scottish Intelligence Database, with links to the security industry and to high ranking Glasgow based criminals.

Francis Anderson, along with others, controls Ruchill Security and has himself been the subject of threats from rival security company members. Anderson is regarded to be the Dempster's front man with regards to their security business interests. Anderson along with Barry and Robert Dempster Jnr have a substantial income from Ruchill Security.

Intelligence provides that Francis Anderson acts as an intermediary on behalf of the Dempsters. He is required to give warnings to their rivals.

On the 28 September 2005 Francis Anderson was cautioned and charged by Strathclyde Police for an assault. (AB11260905 refers).

Conclusion

Ruchill Security was first registered as a company in 1996 and has been under the control of Robert Dempster Snr from then to the present date. He remains as the principal figure and is supported by his two sons Robert Jnr and Barry Dempster who also operate the subsidiary company Pegasus.

As can be seen from the intelligence those in high ranking criminal positions operating within Scotland were quick to identify the lucrative aspects of providing security services to building and construction sites. This situation gave rise to fierce competition between rival criminal security companies and the organised crime groups controlling them. Criminal groups soon adapted tactics of violence, intimidation, vandalism and fear in order to persuade contractors as to the benefits of employing the criminal companies to provide security. Ruchill have and will continue to adopt such tactics when attempting to secure a contract.

It is the opinion of Strathclyde Police that the individuals controlling Ruchill Security are involved in and associate with persons involved in Serious and Organised Crime and present a danger to public safety.

The letter then has an appendix attached thereto headed "Criminal History". The following is a summary of this:-

Robert Dempster Snr- 6 previous convictions dating from1968 to 1975;

Robert Dempster Jnr - 2 previous convictions; 1 Road Traffic Act conviction and one pending Road Traffic Act matter;

Barry Dempster - one pending Road Traffic Act matter; and

Francis Anderson - no previous convictions.

The letter of 20 August 2009 is again written by Detective Superintendent John McSporran to SIA and is in the following terms:-

Information Request on Ruchill Security LLP/Robert Ronney

I refer to Ruchill Security LLP and disclose the following information which may assist in determining the fitness of the company, or individuals linked to the company, for the purposes of the Private Security Industry Act (PSIA) 2001.

The following persons are registered at Companies House as holding appointed positions within the company.

Designated Members

Francis Anderson

(Details)

Robert Dempster Snr

(Details)

No listings for a company director due to the limited liability partnership.

Intelligence

Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of whom cannot be more fully described, which spans a considerable period of time.

Intelligence indicates that persons controlling Ruchill Security LLP are involved in Serious and Organised Crime which includes criminality such as firearms, threats, intimidation, fire raising and extreme violence.

Robert Ronney

(Details)

Intelligence provides that Robert Ronney is employed by Ruchill Security LLP as a supervisor and is responsible for the employment of security guards.

Conclusion

Ruchill Security was first registered as a company in 1996 and has been under the control of Robert Dempster Snr from then to the present date. He remains as the principal figure and is supported by his two sons Robert Jnr and Barry Dempster.

It is the opinion of Strathclyde Police that the individuals controlling Ruchill Security LLP are involved in and associate with persons involved in Serious and Organised Crime and present a danger to public safety.

Counsel's criticisms of the letters can be summarised as follows:-

·       None of the alleged criminal associates are named or identified;

·       No details of the security contracts are given;

·       Other alleged criminal security companies are not specified;

·       No specification is given of the fire-raising attacks;

·       There is mention of an illegal immigrant but nothing to say that he was not licensed in terms of PSIA;

·       The sites are not identified; no dates of alleged attacks are given;

·       It is clear from the terms of the letter of 11 August that Robert Dempster Snr had been the victim of threats of violence;

·       No specification is given regarding alleged acts of vandalism such as would allow the pursuers to answer these allegations;

·       The appendix to the letter of 11 August contains no relevant convictions or offences.

In counsel's submission the letter of 11 August simply contains a number of bald allegations with insufficient detail given to allow the pursuers to challenge them. The court may consider giving some weight to the advice of Strathclyde Police and that becomes even more concerning when the pursuers cannot challenge the allegations. This amounts to a clear violation of Article 6(1) - a wrong which cannot be remedied at proof. There is nothing in the pleadings which would allow any evidence of a specific incident to be led. Based on the current pleadings, the pursuers cannot even begin to investigate or bring a case to counter the allegations made in this letter.

Inadmissible hearsay submission:

In counsel's submission, the Court cannot be satisfied that the letters from Strathclyde Police are admissible hearsay. She submitted that in fact they are inadmissible on the basis that they are hearsay and are incapable of being evidence of the truth of their contents.

Further the letters contain inadmissible opinion evidence. In the opinion of Strathclyde Police the pursuers are involved in serious organised crime and are a danger to the public. However, in an appeal under section 11 PSIA it is for the court to decide whether the pursuers are involved in relevant criminal activity or present a danger to the public and thus satisfy the criteria for suspension or revocation. On appeal the opinion of the police is inadmissible at proof as this usurps the function of the court in determining the appeal.

These letters constitute inadmissible hearsay and cannot be evidence of the truth or otherwise of their contents. Counsel referred the court to the Civil Evidence (Scotland) Act 1988, section 2 which states -

"a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible."

These letters are hearsay of entries contained in the Scottish Intelligence Database (SID). There is no suggestion that Detective Superintendent McSporran is the author of the entries on the database nor that he is the source of the original intelligence. There is no basis upon which the court can be satisfied that the test for admissibility of hearsay evidence has been met, ie that the direct oral evidence of the person to whom the statement is attributed would be admissible. The letters can only be admissible to the extent of establishing that certain entries exist on the database. There is no point, therefore, in proceeding to proof simply to establish that this information is on Strathclyde Police database and, given that the contents of this letter are the only criteria upon which the SIA seek to rely, decree should be granted in favour of the pursuers at this stage.

Irrelevance of the letters from Strathclyde Police to criteria for revocation and suspension:-

Dealing firstly with Mr Robert Ronney, the letter of 11 August 2009 is irrelevant. He is not mentioned in it and the letter of 20 August 2009 contains no allegations against him. It too is, therefore, irrelevant. There is no suggestion of any database information relating to him. The SIA are therefore incapable of proving any criteria for suspension or revocation of his licence. His appeal should therefore be allowed at this stage.

In so far as the other pursuers are concerned, counsel referred the court to "Get Licensed" booklet/s. The criteria set out in the September 2008 booklet is as follows:

Page 53 - Revoking a Licence

Your licence will be revoked if -

• You are not the person to whom the named licence has been issued
• You do not have the training qualifications that were claimed on application
• Your receive a conviction, caution, warning, absolute/conditional discharge or admonishment for a relevant offence
• You have been working with an SIA licence without the Right to Work or we have been informed by the relevant authorities that you are in the United Kingdom illegally.

Your licence may also be revoked if:

·        You break the conditions upon which your licence was issued

·        We receive, or have from our own sources, non-conviction* information suggesting that there is a case for having your licence revoked

·        You become subject to detention or other compulsory measures due to mental disorder.

*(Page 47) in this context 'information' will normally mean compelling evidence of relevant criminal activity as defined in the list of offences [...], anti-social behaviour or criminal association.

If we judge it necessary to revoke your licence, we will write to inform you of this, providing the basis for our decision, and invite you to supply further information. You will then have 21 days to provide a response to our revocation letter.

Your response may include any factual errors in our assessment (for example, an error concerning identity or an error in assessing your competence or criminal history.

Page 54 - Suspending a licence

Licence suspensions have immediate effect.....We will normally consider suspension only where we are reasonably satisfied that a clear threat to public safety could exist if we did not suspend the licence. This usually means that a serious offence has allegedly taken place, where you have been charged but bailed.

We will suspend a licence in other circumstances if it is in the public interest to do so.

The criteria for suspension contained in the April 2010 booklet is in identical terms however the criteria for revocation (found on page 57) is different to the following extent:-

... the licence may also be revoked if -

• You break the conditions upon which your licence was issued
• We hold information as described on page 51 which indicates you are not a fit and proper person to hold a licence
• You become subject to detention or other compulsory measures due to mental disorder.

Page 51 states

We will not normally seek out information about you that may be held by organisations we work with (such as the police and local authorities) which has not been tested in criminal courts. But if such information is offered to us, or we have information from our own sources (eg SIA warnings, County Court judgements), then we will consider it. In this context 'information' will normally mean compelling evidence of relevant criminal activity (as defined in the list of offences on pages 63 to 81 of this booklet), anti-social behaviour, criminal association or activity that is likely to bring the industry into disrepute or indicates that the applicant is not a fit and proper person to hold a licence... (emphasis mine).

In counsel's submission the criteria with regard to suspension envisages a serious charge being preferred. Nothing in the Strathclyde police letters provides a basis for coming to the conclusion that a clear threat to public safety exists. Only Robert Dempster Jnr and Barry Dempster have any pending cases and these are of a trivial nature (road traffic matters).

The "other circumstances" referred to in the criteria are not defined but must amount, in counsel's submission, to something sufficiently concerning to justify suspension, eg mental health problems.

In so far as revocation is concerned, this is discretionary, not mandatory. The relevant criteria applied by the SIA in making its decision to revoke these licences, (September 08 criteria) were - "We receive, or have from our own source, non-conviction information suggesting that there is a case for having your licence revoked."

The April 2010 criteria revise the definition of "information" to include reference to "...or activity that is likely to bring the industry into disrepute or indicates that the applicant is not a fit and proper person to hold a licence."

With regard to "relevant criminal activity", counsel referred to the appendix to the letter of 11 August and submitted that nothing contained therein could be said to amount to relevant offences in terms of the criteria. It should also be noted that Mr Anderson has no previous convictions.

In the main body of the letter various allegations are made against the pursuers (except Mr Ronney) of criminal activity. However these allegations are wholly inspecific. Criminal activity in terms of assessing whether someone is a fit and proper person to hold a licence appears to require a conviction, or at least a charge (of a relevant offence) pending trial. That is not the case here. The letters are therefore not capable of establishing compelling evidence of recent criminal activity such as would meet the criteria for revocation.

The letter of 11 August refers to the day to day running of the business being carried out by Robert Dempster Snr supported by his sons, Barry and Robert Jnr "along with their criminal associates." There then follows allegations of acquiring contracts through acts of fire-raising, violence and threats. These associates are not named and no specific instance is cited in which a contract was acquired in this manner.

There is reference to "extensive criminal contacts" but no such contacts are named or identified in any way. No instances of intimidation or threats are cited.

In Ms McCall's submission, none of these bald assertions by the police are capable of amounting to compelling evidence such as would justify revocation of licences.

"Activity that is likely to bring the industry into disrepute" must amount to something different from criminal activity or criminal association. There are only two such assertions within the letter. The first relates to "signage". No sites are specified where this activity is alleged to have taken place, no dates when it is alleged to have occurred, no details of the rival companies said to be involved and no information as to why it can be asserted that Ruchill are responsible. In the circumstances this is incapable of amounting to evidence of any activity likely to bring the industry into disrepute. The second assertion relates to illegal immigrants identified as on construction sites for which Ruchill provide security. Nothing within the letter points to these people being employees of Ruchill as opposed to employees of the construction company. Again, no dates, times or loci are specified. Similarly none of this information is capable of amounting to compelling evidence of activity likely to bring the industry into disrepute.

In all the circumstances the information contained within the letters cannot amount to "compelling evidence", is incapable of satisfying the criteria and as such are irrelevant.

Counsel moved for decree in favour of the pursuers in each of the applications.

Submissions for Defender

The defender's primary motion was for the court to fix a hearing by way of proof before answer in relation to the Summary Applications and answers.

Mr Barne posed the question - what is the court's function in an appeal of this nature? The answer, he submitted, was to be found in section 11(5) of the PSIA, namely that the "court shall determine the appeal in accordance with the criteria for the time being applicable in terms of section 7". Simply to determine the action at this stage is not a proper performance of the court's function in terms of the statute.

It is quite conceivable that the SIA may come to the view that someone is not a fit and proper person to hold a licence and a Sheriff may come to a different view. This type of appeal is an opportunity for an administrative decision to come before the court for re-assessment. The court should not dispose of the appeal by sustaining a preliminary plea as this entails no consideration of the merits of the appeal.

Failure to approve the criteria argument:

In so far as the published criteria is concerned, Mr Barne submitted that it is not competent to challenge the criteria by way of an appeal under section 11(5). This type of challenge requires to be taken by way of judicial review. If the challenge being taken is that the criteria have not been approved, then the Home Office needs to become a party to the proceedings. If that is the case, ie that the criteria have not been approved, then the SIA are acting ultra vires and the appropriate remedy in that situation is interdict and declarator.

The bold averment that the criteria have not been approved has no basis. It is a classic "fishing" averment. Whether the criteria have been approved is a matter of fact which can only be determined by way of proof. In Mr Barne's submission the court should apply the maxim omnia praesumuntur rite et solemniter acta esse (all things are presumed to have been done duly and in the usual manner). This he submitted operated in two ways. Firstly, when it has been represented to the SIA that there has been approval, it is entitled to assume that such approval has been given appropriately. It is not for the SIA to scrutinise the Home Office. Secondly, it is not possible, based on written pleadings and submissions, to arrive at any concluded view as to whether or not the criteria have been approved by the Secretary of State. The court should proceed on the basis that formalities that should have been attended to, have been attended to and that the criteria have been properly approved.

The letter from Kenny McAskill is not approval. There is no need for approval to be in the form of a statutory instrument nor indeed is there any need for it to be recorded formally in writing. The defender's averments in this regard are to be found (in B832/09) in Answer 3 page 6 and read as follows:-

"The criteria set out therein have been approved by the Secretary of State, in accordance with section 7(5) of the Act. Approval was given in terms of the Act and letter conform to such approval was sent by Kenny McAskill to Vernon Coaker MP on 21 August 2008."

In Mr Barne's submission this sets out the basis upon which evidence of the approval can be led. The reference to the Kenny McAskill letter simply shows consultation with the Scottish Ministers as the Act requires. The pleadings simply reflect what is set out in the Act. What the pursuers seek to do is to rely on a supposed irregularity and it is therefore for them to establish that irregularity. He referred the court to the case of Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. This case concerned the service of a notice of requisition on a company by an official of the defenders. The court held that the notice was valid, opining, per Lord Green MR at page 563

"The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department."

In other words the acts of officials are the acts of the relevant Minister (the Carltona doctrine).

It is not appropriate for the pursuers simply to aver that no approval was given without giving a basis for that averment. Mr Barne further submitted that the implications of this challenge to the criteria should be considered. If indeed there is no approved criteria then there can be no licence to suspend or revoke.

Letters from Strathclyde Police:-

Turning to the letters from Strathclyde Police Mr Barne accepted that if they were being scrutinised under the normal conditions of relevancy and specification then they are not all that they might be, however, that is not what the court should be considering. There is sufficient within the letters to proceed to proof. This is not a situation where the defender is bound to fail at proof nor that the pursuers are bound to succeed. The letters are not conveyancing documents and should not be treated as such. They are the product of the Chief Constable having interrogated the data base. There is nothing to prevent the respondents from leading witnesses to say what information they had to give rise to the entries and where that information came from. Further there is nothing to prevent them from leading evidence of where the second hand source came from. The court could then assess whether section 2 of the Civil Evidence Act applies. The point of the letters is that they identify those individuals mentioned as being involved in gang land activities. Bitter gang rivalries are discussed within the letter. The SIA were entitled to have regard to the letters and given the public protection element of their role (section 1(2) (c ) of the PSIA 2001), it would have been a dereliction of their duty not to have regard to them. Further it would be inappropriate for the SIA to second guess the police or the information they provided. With regard to the criteria (both 2008 and 2010) under the heading "Use of Other Information" it is stated that "information" will normally mean compelling evidence." It is not a requirement that any such information must amount to compelling evidence.

Alleged violation or Article 6(1):-

With regard to the breach of Article 6 arguments advanced by the appellants, it was submitted that if the allegation is that the SIA acted in breach of human rights in having regard to the letters from Strathclyde Police, then that would have to be considered in the context of judicial review. In so far as the "equality of arms" argument is concerned it comes down to whether or not the appellants are at a substantial disadvantage as compared to the SIA. That issue is, however, premature at this stage. It is only after ruling on the evidence that the court can determine if the appellants have been disadvantaged. Counsel referred the court to The Law of Human Rights, Clayton & Tomlinson, para 11.423 -

"A decision as to the fairness of a hearing is based on an assessment of the course of the proceedings "as a whole."

Mr Barne also referred the court to the case of Khan v UK (2001) 31 EHRR 45 and to Human Rights Law and Practice, para 4.6.34. With reference to these authorities counsel submitted that an Article 6 challenge to the admissibility of evidence can only be determined in the case as a whole and not as a preliminary matter. It is open to the pursuers to object to evidence led at proof and the court can determine the matter at that point and, in particular, to assess whether or not any hearsay evidence can be admitted in terms of section 2 of the Civil Evidence (Scotland) Act 1988.

If the appellants' position is that there was insufficient information for the SIA to suspend and revoke the licences, that, it was submitted, is irrelevant to the function of the court. The court should look at the material available and apply the criteria. Looking at the 2010 criteria, page 57 thereof sets out the position with regard to the revocation of a licence and states, inter alia, -

Your licence may also be revoked if:

·        We hold information as described on page 51 which indicates that you are not a fit and proper person to hold a licence.

At page 51 under the heading "Use of other information" it states, inter alia -

In this context, 'information' will normally mean compelling evidence of relevant criminal activity (as defined in the list of offences on pages 63-81 of this booklet), anti-social behaviour, criminal association or activity that is likely to bring the industry into disrepute or indicates that the applicant is not a fit and proper person to hold a licence.

Reading these together resulted, in counsel's submission, in "compelling evidence of an indication that a person is not fit and proper to hold a licence." There was, in his view, plenty of evidence of criminal activity set out in the letters from Strathclyde Police, subject, of course, to issues of specification. The employment of illegal immigrants is something which could bring the industry into disrepute as was the issue of the signage. With regard to Mr Ronney, one must read the letter of 11^th August in its entirety from which it can be extracted that Mr Ronney is part of this alleged "gang".

In all the circumstances the matter should proceed to a proof before answer, reserving the issue of expenses.

Response by appellants:-

In response counsel for the appellants submitted that the defender had conceded a debate on these issues and it was now too late to make a motion for a proof before answer. These appeals are summary applications and the court can determine the issues involved on the basis of the written pleadings. There is no authority to the effect that these issues cannot be determined at debate.

Ms McCall further submitted that the Carltona doctrine referred to by Mr Burke applies only to actings of ministers and not of authorities such as the SIA.

The SIA is a public authority and as such it cannot act in breach of Article 6. As a result of this obligation it cannot present and rely on pleadings which lead to a breach of Article 6 in that they fail to provide adequate specification which puts the appellants at a disadvantage. The court cannot allow a matter to proceed to proof when this would lead to an inequality of arms. Domestic courts are tasked with ensuring that proceedings before them are fair. There is nothing within the written pleadings which allows the appellants to prepare for proof, this violates Article 6 and cannot be remedied.

DECISION

The defender seeks a proof before answer arguing that the court should not dispose of the appeals without consideration of the merits of them and that to determine the issues at debate is not a proper performance of the court's function in terms of the statute.

These appeals are summary applications, commenced by way of initial writ and proceed by way of written pleadings. As such they are subject to scrutiny by the court regarding the relevancy and specification of such pleadings and as such may proceed to debate. I was not referred to, nor could I find, any authority to the effect that summary applications of this nature could not be determined at debate. I shall therefore proceed to deal with the issues raised at this debate in the order in which they were argued before me.

Failure to approve criteria argument:-

Section 7 (1) of the PSIA provides that it shall be the duty of the SIA, before granting any licences, to prepare and publish a document setting out the criteria it proposes to apply in determining whether or not to grant a licence and in exercising its powers to revoke or modify a licence. In terms of section 10 of PSIA modification of a licence may include suspension. Further, in terms of section 7(5) such criteria or revised criteria shall not have effect unless the Secretary of State have approved them and, in terms of section 7(5A) before giving such approval the Secretary of State must consult with the Scottish Ministers.

The pursuers submit that there is no such approval and that the court should not apply the maxim omnia praesumuntur rite et solemniter acta esse on the basis that it could only properly be applied if there was what appeared, on the face of it, to be approval by the Secretary of State. In their submission there is no publicly available evidence showing approval of any criteria therefore the court cannot know which criteria are currently in force. In terms of the statute, the SIA require to publish the criteria first and then have it approved by the Secretary of State, therefore the very fact that there is published criteria in existence does not, of itself, mean that it has been approved.

The defender submits that simply because the pursuers cannot find this approval does not mean that it does not exist. If the pursuers are alleging some form of irregularity in the criteria then the onus is on them to establish that irregularity. The court should proceed on the basis that approval has been given.

In my view the approval, or otherwise, of the Secretary of State must be a question of fact. Such approval exists or it does not and that is a matter determinable only at proof. The letter from Kenny McAskill to Vernon Coaker is not approval however it does demonstrate consultation with the Scottish Ministers in terms of section 7(5A). To that extent at least there is evidence of compliance with the section. At this stage the court is entitled to apply the maxim omnia praesumuntur rite et solemniter acta esse and to presume that the formalities of approval that ought to have been carried out have indeed been carried out.

Having said that, I am at a loss to understand why the defender has not produced this approval or averred the manner it which it was obtained given that it has known for some considerable time that this would be an issue at debate and having already been raised as an issue at an interim stage in the proceedings. Whilst I find that an unsatisfactory situation, it is one in which I am bound to conclude that the court should proceed on the basis that the statutory requirements have been met.

Alleged violation of Article 6 and inadmissible hearsay:

The pursuers submit that admitting the letters from the police as evidence and relying on them to fulfil the criteria for suspension and revocation would breach Article 6(1). They submit that there has been and will continue to be a violation of Article 6(1).

The defender submits that such an argument is premature at this stage and that any such alleged breach of Article 6 should be seen in the context of the proceedings as a whole and that the court should allow the matter to proceed to proof, rule on the admissibility or otherwise of evidence and determine the issue at that stage.

I consider that the pursuers' arguments that Article 6 is invoked are sound. All the pursuers are directly or indirectly involved in the firm of Ruchill Security LLP. They have each had their licence suspended and revoked. The decision by the SIA to suspend and revoke these licences is clearly directly decisive of the pursuers' right to run the security firm. The suspension and revocation of these licences had a clear and decisive impact of the pursuers' right and ability to run their security company. The same considerations apply when the court is determining these appeals.

In Capital Bank v Bulgaria a licence was withdrawn which automatically put the bank into liquidation. At para 88 the court opined -

"Concerning the civil character of the right, the court notes that the withdrawing of the licence and the ensuing winding-up order had a clear and decisive impact on the applicant bank's ability to continue operating as a going concern and its right to manage its own financial affairs and to administer its property. These measures eventually resulted in its being struck off the register of companies and its ceasing to exist as a legal person. They were thus decisive as far as its civil rights were concerned."

The court was told that the pursuers are no longer able to operate their company without these licences, the limited liability partnership has had to close down and all their contracts have been assigned to another company. The pursuers submit that Article 6 (1) is invoked and with that submission I agree.

The defender does not aver nor does it seek to argue that the decision to suspend and revoke the licences was based on anything other than the letters from Strathclyde Police. This is the only basis for suspension and revocation pled before this court. They submit that there is sufficient set out within the letters to allow them to lead evidence of criminal activity on the part of the pursuers. The SIA has predicated its case on the terms of these letters. They are incorporated into their pleadings brevitatis causa and no expansion is made to them.

The SIA is clearly a public authority and falls within the ambit of section 6(1) of the Human Rights Act 1998. The court is equally bound by the terms of this section. Neither the SIA nor the court can "act in a way that is incompatible with a convention right." The actings of the SIA and those of the court must be ECHR compliant. The pursuers are entitled to fair hearing in terms of Article 6(1) and this entitlement encompasses the right to equality of arms. The pursuers are entitled to know the case against them and the case upon which suspension and revocation of their licences is based. As a party to these civil proceedings they should have a reasonable opportunity of presenting their case to this court under conditions that do not place them at a substantial disadvantage vis-a-vis the defender.

The letters from Strathclyde Police (in particular that of 11 August 2009) contain allegations of serious criminal activity and raise very serious concerns regarding public safety. Their terms are such that they would cause the court to have concern regarding public safety. It is for this very reason that, if the court is being asked to place weight on these letters and for their terms to be determinative of suspension and revocation of the pursuers' licences, that they require to be in clear and specific terms. The information should be capable of verification and, if necessary, challenge. The pursuers should know precisely what is being alleged against them so that they may answer that and, if appropriate, refute it. The letters, however, contain only bald averments (with the exception of the allegation of 29 March 2008). There are no dates given of alleged incidents, no loci identified, no contracts specified and no rival companies identified. In these circumstances it is not possible to see how the pursuers can know the case against them, answer that and prepare for proof.

The letter of 11 August 2009 contains the following paragraphs:-

Intelligence

Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of which cannot be more fully described, which spans a considerable period of time.

Due to a requirement to provide protection to persons or other means used to acquire intelligence, Strathclyde Police would, respectfully, decline to provide details of sources of intelligence based on a consideration of the threat to intelligence sources and particularly to the need to ensure that the safety of any individuals who might constitute such sources is not put at risk of serious injury or even loss of life.

The first paragraph refers to sources "some of which cannot be more fully described.." This appears to me to imply that some of the sources can indeed be identified. However in the following paragraph the police decline to provide any information regarding sources. Reading these together, and in the context of the entire letter, it seems to me that the police are able to identify some of their sources, and presumably to provide greater specification of the incidents, persons, loci and contracts referred to, but have simply declined to do so. For reasons best known to itself the defender has not pled any public interest immunity in respect of this "intelligence". The court is therefore not in a position to assess any such claim. The court is therefore left with a situation where some greater specification could have been given but a decision has been taken by the police not to provide this and the defender has adopted that position within its pleadings. In these circumstances there appears to me to be a clear inequality of arms and a clear disadvantage to the pursuers in these proceedings.

In my view such inequality of arms and disadvantage violates Article 6(1). The question is whether this can be remedied at proof and whether the pursuers can be guaranteed a fair hearing. The defender asks the court to leave this issue to proof until there has been a ruling on the admissibility or otherwise of evidence. In my view the pursuers should not have to wait until proof. They are entitled to know the basis of the case against them before proof to allow them to adequately prepare their own case. They should not have to wait for proof to find out what the case is, or might be, against them. The letters from Strathclyde police, and thus the defender's pleadings do not contain sufficient specification to enable the pursuers to identify what is being alleged against them. The letters are wholly lacking in specification.

In these circumstances I am satisfied that there has been, and will continue to be, a violation or Article 6(1). Once so satisfied I consider that the court is duty bound to rule on any such violation at the earliest opportunity and not allow such violation to continue.

I consider the court can be satisfied at this stage in the proceedings that there has been a breach of Article 6(1) and that such breach is likely to continue. Accordingly the pursuers' pleas-in-law in this respect should be upheld.

Hearsay:-

I respectfully agree with the submissions made in this regard for the pursuers. The information contained in the letters is taken from the Scottish Intelligence Database. The author of the letter is not alleged to be the source of the information on the database. The letters are hearsay of the information on the database. The question is whether the court can be satisfied that the direct oral evidence of the person or persons who are the source of this information would be admissible. The court cannot be so satisfied. In these circumstances the letters would be inadmissible hearsay. The author of the letter can only give evidence that this information was taken from the database. As currently pled, he can only give evidence to this limited extent. He cannot speak to the truth or otherwise of the content of the information on the database.

Irrelevance of the letters from Strathclyde Police:

The criteria for suspension of a licence as set out in the Get Licensed booklet (April 2008 and September 2010) is in identical terms and reads as follows:-

Licence suspensions have immediate effect.....We will normally consider suspension only where we are reasonably satisfied that a clear threat to public safety could exist if we did not suspend the licence. This usually means that a serious offence has allegedly taken place, where you have been charged but bailed.

We will suspend a licence in other circumstances if it is in the public interest to do so.

(emphasis mine).

The criteria for revocation set out in the September 2008 booklet are to be found on page 53 and read:-

Your licence will be revoked if:

·        You are not the person to whom the named licence has been issued

·        You do not have the training qualifications that were claimed on the application

·        You receive a conviction, caution, warning, absolute/conditional discharge or admonishment for a relevant offence

·        You have been working with an SIA licence without the Right to Work or we have been informed by the relevant authorities that you are in the United Kingdom illegally.

Your licence may also be revoked if:

·        You break the conditions upon which your licence was issued

·        We receive, or have from our own sources, non-conviction* information suggesting that there is a case for having your licence revoked (emphasis mine)

·        You become subject to detention or other compulsory measures due to mental disorder

At page 47 of the September 2008 booklet under the heading Use of other information/Non-Conviction Information it states:-

We will not normally seek out information about you that may be held by organisations we work with (such as the police and local authorities) which has not been tested in the courts. But if such information is offered to us, or we have information from our own sources (e.g SIA warnings), then we will consider it. In this context 'information' will normally mean compelling evidence of relevant criminal activity as defined in the list of offences on pages 61 to 78 of this booklet, anti-social behaviour or criminal association. (emphasis mine).

The criteria in respect of revocation set out in the April 2010 booklet is to be found at page 57 and reads:-

Your licence will be revoked if:

·        You are not the person to whom the named licence has been issued

·        You do not have the training qualifications that were claimed on the application

·        You receive a conviction, caution, warning, absolute/conditional discharge or admonishment for a relevant offence

·        You have been working with an SIA licence without the right to work or we have been informed by the relevant authorities that you do not have the right to work or an in the United Kingdom illegally.

Your licence may also be revoked if:

·        You break the conditions upon which your licence was issued

·        We hold information as described on page 51 which indicates you are not a fit and proper person to hold a licence

·        You become subject to detention or other compulsory measures due to mental disorder.

At page 51 under the heading Use of other information it states:

We will not normally seek out information about you that may be held by organisations we work with (such as police and local authorities) which has not been tested in criminal courts. But if such information is offered to us, or we have other information from our own sources (e.g SIA warnings, County Court judgements), then we will consider it. In this context 'information' will normally mean compelling evidence of relevant criminal activity (as defined in the list of offences on pages 63 to 81 of this booklet), anti-social behaviour, criminal association or activity that is likely to bring the industry into disrepute or indicates that the applicant is not a fit and proper person to hold a licence...(emphasis mine).

It is worth remembering at this juncture that the courts function in an appeal of this nature is as set out in section 11(5) of PSIA 2001, namely:-

A court to which an appeal is brought under this section shall determine the appeal in accordance with the criteria for the time being applicable under section 7.

It is a matter of agreement that the court has to look at this issue of suspension and revocation de novo applying the criteria for the time being applicable, in this case the April 2010 criteria.

Dealing firstly with the issue of suspension it appears to me that a correct reading of the criteria means that there must be a clear threat to public safety normally arising from a serious offence allegedly having taken place where the licensee has been charged but bailed. "Other circumstances" are not defined within the criteria but must, on a proper interpretation, refer to something other than a criminality. Counsel for the pursuer referred to such factors as mental health. Issues such as mental health and the right to work are issues, other than criminal matters, which the SIA take into account themselves and I consider that counsel's submissions in this regard are well founded.

In so far as Mr Robert Ronney is concerned he does not feature at all in the letter of 11 August 2009. In the letter of 20 August 2009 he is mentioned in the heading of the letter and his details (date of birth and address) are set out on page 2. Thereafter the only reference to him is as follows:-

"Intelligence provides that Robert Ronney is employed by Ruchill Security LLP as a supervisor and is responsible for the employment of security guards."

No criminal activity is alleged against him, specific or otherwise. There is no allegation of any serious offence for which he has been charged but bailed. There are no details of any "other circumstances" in which it would be in the public interest to suspend his licence, eg serious and sudden mental illness. Applying the criteria for the time being applicable in respect of suspension there is nothing pled against Mr Ronney which would meet the terms of this criteria, there is nothing in the letters which are capable of proving the criteria for suspension of his licence and the letters in this regard are therefore irrelevant.

Turing to the other pursuers, the court must again scrutinise the terms of the letters from Strathclyde Police, given that these form the basis upon which the SIA have predicated its case, to ascertain whether they are relevant to the issue of suspension of these licences. Within these letters, and in particular that of 11 August 2009, one would expect to see a clear threat to public safety normally arising from a serious offence allegedly having taken place where the licensee has been charged but bailed and/or some other circumstance which indicates it is in the public interest to suspend the licence. In general the letter of 11 August 2009 contains a number of bald allegations which are unspecific as to time and place. Such bald statements are summarised and repeated in the letter of 20 August 2009 thus:-

"Intelligence indicates that persons controlling Ruchill Security LLP are involved in serious and organised crime, which includes criminality such as firearms, threats, intimidation, fire-raising and extreme violence."

Within the letter of 11 August 2009 details of only two incidents are given, one on 29 March 2008 and the other on 17 April 2008. They read:-

"On the 29 March 2008 Ruchill Security were providing security at a building site at Culloden Drive Glasgow where as a result of a fireraising a JCB forklift vehicle at locus was destroyed at the cost of approx £50,000. The security guard employed by Ruchill Security at the time of the incident was identified by police officers as being an illegal immigrant and has since been deported.

On the 17 April 2008 a joint operation between Strathclyde Police and The Border and Immigration Agency coducted a number of visits to building sites within the Strathclyde area which resulted in five illegal immigrants being identified. Ruchill Security were providing security at these sites. On visiting a number of other sites controlled by Ruchill Security the police found that the building sites had been left unprotected and the security huts had been deserted by the guards and it is believed that these guards were also illegal immigrants and had been warned of the imminent action of Strathclyde Police.

The incident of fire-raising on 29 March appears to relate to an incident in which Ruchill were the victims. The reference to the security guard's status seems to me to be so vague in its terms that it must be irrelevant to the issue of suspension. It poses two apparent questions - (1) was the guard licensed and (2) did Ruchill know of his true status? In itself this information cannot meet the criteria for suspension. The information provided in respect of 17 April 2008 is equally as vague and cannot be directly linked to Ruchill. It does not state that the illegal immigrants were employed by Ruchill, nor that they (Ruchill) knew of their existence never mind their status. In so far as the deserted huts are concerned this may well speak to the level of efficiency (or otherwise) within Ruchill but does not meet the criteria for suspension.

Nowhere in either letter are we told of a serious offence allegedly having taken place where any of the pursuers was charged but bailed such as would meet the criteria for suspension. The letter of 11 August 2009 refers to Francis Anderson being cautioned and charged in respect of an assault on 28 September 2005. This in itself cannot fulfil the criteria given it is of such an historic nature and, in any event, pre-dates the issue of his licence. Robert Demptser Jnr and Barry Dempster are said to have pending cases but these are for road traffic matters and therefore cannot be said to fulfil the criteria.

Applying the criteria for the time being applicable in respect of suspension there is nothing pled against these pursuers which would meet the terms of the criteria, there is nothing within the letters which are capable of proving the criteria for suspension and the letters are , in this regard, irrelevant.

Turning now to the issue of revocation, the relevant April 2010 criteria applicable in this case (and which is to be applied by this court) requires "information...normally amounting to compelling evidence of relevant criminal activity...anti-social behaviour, criminal association or activity that is likely to bring the industry into disrepute or indicates that the [licensee] is not a fit and proper person to hold a licence."

Again, dealing firstly with Mr Ronney, my observations in respect of suspension of his licence are equally applicable here. Quite simply there are no allegations against him of any nature, criminal or otherwise, compelling or otherwise. Counsel for the defender urged the court to consider Mr Ronney as part of an alleged "gang" and that this could be inferred from the letters of 11 and 20 August 2009 read as a whole. That however, in my view, cannot be the case. Licences are issued to individuals and any application of the criteria for suspension or revocation must be applied to them as individuals. One assumes that if there was any information linking Mr Ronney to any of the activities set out in these letters, that would have been stated. Therefore, in so far as Mr Ronney is concerned, applying the currently applicable criteria for revocation, there is nothing pled against him which would meet the terms of this criteria, nothing within the letters of 11 or 20 August 2009 which are capable of proving the criteria and the letters are, accordingly, irrelevant.

In so far as the other pursuers are concerned, there is an annexe to the letter of 11 August detailing the previous convictions of Robert Dempster Snr and Robert Dempster Jnr. It also details pending cases in relation to Robert Dempster Jnr and Barry Dempster. It discloses no previous convictions applicable to Francis Anderson. Mr Dempster Snr's previous convictions are historic in nature, pre-date the issue of his licence and in themselves did not preclude him from obtaining a licence from the SIA. In so far as Robert Dempster Jnr is concerned his previous convictions and pending case are for road traffic offences. In so far as Barry Dempster is concerned his pending case is for a road traffic matter. With regard to the information relating to Francis Anderson in respect of a caution and charge in 2005, this pre-dates the issue of his licence. In the circumstances, none of this information can amount to compelling evidence of criminal activity.

The letter of 11 August sets out a number of allegations against Robert Dempster Snr, Robert Dempster Jnr, Barry Dempster and Francis Anderson. They are alleged to be involved in firearms, fire-raising, threats, intimidation and extreme violence. There are allegations that Robert Dempster Snr is involved in the supply of drugs and money laundering. These are serious allegations but the question is whether these amount to compelling evidence of criminal activity. Looking at the SIA criteria set out in the April 2010 booklet relating to criminality (page 41), this appears to require a charge or a conviction. There are no charges detailed against any of the Dempsters. Only one charge is detailed against Francis Anderson and that is historic in nature. There are no convictions for offences that can amount to compelling evidence of criminal activity. Therefore what is left is a series of allegations which are unspecific in nature.

Throughout the letter of 11 August there is mention of 'criminal associates', 'criminal contacts', 'associations with Strathclyde based criminals' and 'criminal links in London'. As has previously been observed, none of these 'associates' or 'contacts' is named. There are simply bald assertions by the police regarding alleged criminal associates. In my view that does not amount to compelling evidence of criminal association.

The criteria requires information indicating that the licensee is not a fit and proper person to hold and licence, normally amounting to compelling evidence of criminal activity, anti-social behaviour, criminal association or activity that is likely to bring the industry into disrepute or indicates that the [licensee] is not a fit and proper person to hold a licence. I agree with Ms McCall's submission that activity likely to bring the industry into disrepute must allude to something other than criminal activity, anti-social behaviour or criminal association. There is still a requirement for compelling evidence of such activity. The only allegations within the letters which can amount to such other activity are those relating to the signage and illegal immigrants. The allegations relating to the signage are wholly unspecific. No details of sites, dates, times etc are given. No 'rival companies' are identified. Again the information in relation to illegal immigrants is unspecific and in fact do not disclose any material indicating that Ruchill knew of the immigrants' true status.

These letters are concerning in their terms however, that in itself is not sufficient to meet the criteria. They are so unspecific in their terms that they cannot amount to the test of "compelling evidence" set out in the criteria. Applying the criteria for the time being applicable in respect of revocation there is nothing pled against the pursuers which would meet the terms of the criteria, there is nothing within the letters which are capable of proving the criteria and the letters are therefore irrelevant. I should add for the sake of completeness that they are so lacking in specification as to be irrelevant.

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