There is unfairness in the procedure for reviewing the position of a personal licence holder following a premises licence review

A couple of cases I have witnessed or been involved in over the last few months have focused on s 84, the section dealing with reviews of personal licences.

Where a licensing board finds, in the course of a premises licence review, that a personal licence holder has acted in a manner inconsistent with any of the licensing objectives, action must be taken. Where the personal licence was granted by the board in question, it requires to hold a hearing. To the fair minded, it might appear that a hearing should take place before a finding is made, but let that pass. If the personal licence was granted by another board, the position is even worse. In those circumstances, the board must give notice to the issuing board together with a recommendation as to whether the personal licence should be revoked, suspended or endorsed.

Handicap race

Bear in mind that the personal licence holder may not have been represented or even present at the original hearing. If he was, he probably has no locus to defend himself. To quote an argument which I heard Central Scotland police advance, he is not “at the races”.

That was in the context of a feisty performance by Richard Sandeman, representing a former club steward. A premises licence review was proposed against his former employers, and it was clear that the finger was going to be pointed at Mr Sandeman’s client. As is sadly not uncommon, the police case rested on claims being made by anonymous sources. The police refused to give details of the people making the allegations, citing the Data Protection Act as their excuse. Mr Sandeman objected most strongly, pointing out that he was entitled to sufficient detail to enable him to make proper enquiry. He correctly pointed out that once the board had made a finding under s 84, it could not unmake it. It was fundamentally unfair for an individual to be faced with such a finding based on inadequate and untested evidence.

It is really very difficult to argue against that. People can say that loss of a personal licence does not prevent one from working in the licensed trade. I believe that is less true these days, particularly if you are looking for a manager’s post.

The other factor that licensing boards seem to overlook is that the cost of representation at a hearing is very considerable. How can it be fair for an individual to be cited to appear at a hearing affecting his livelihood, with a recommendation already made, when he has had no previous input into the proceedings?

Present in person?

The review has to be based on the conduct of a licence holder who is or was working in the licensed premises which are the subject of the premises licence review (s 84(1)). That subsection was the main point in issue in the case of Archer v Edinburgh Licensing Board (Edinburgh Sheriff Court, 22 December 2011, unreported). A series of incidents had taken place in an Edinburgh pub over a year. It was not disputed that none of these had taken place when the pursuer, who was also the premises manager, was present. It was argued that s 84 could not therefore be applied. Rejecting this argument, the board revoked the personal licence. Refusing the appeal, Sheriff Mackie stated that it was significant that the pursuer was not only a personal licence holder, but was also the premises manager. As authorisation for the sale of alcohol can be given by a person who does not require to be on the premises at the time of sale, it followed that a person could have responsibility at a time when he was not present.

Space does not permit a more detailed analysis, but it seems to me that far too much emphasis was placed on the fact of the pursuer also being the manager. Section 84 relates to personal licence holders – there is no separate test provided for premises managers. It will be interesting to see whether this is followed by others.

The Author
Tom Johnston, Managing Partner, Young & Partners LLP, Glasgow and Dunfermline
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