'Interim recall' needs revisited | Scottish Licensed Trade News

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‘Interim recall’ needs revisited

Posted on by in Legal

Current situation in Glasgow sheds light on a weakness in legislation

It’s impossible to recall a licensing ruling that has generated so much controversy.

A couple of weeks ago, Glasgow licensing board took the step of varying The Arches nightclub’s licence so that licensed hours now terminate at 12 midnight, rather than 3am, following a review hearing called by Police Scotland.

The background has, of course, been widely reported.

Glasgow licensing board cut the hours at nightclub and venue The Arches.

Glasgow licensing board cut the hours at nightclub and venue The Arches.

The police claimed that there were “potentially lethal and profound consequences” unless problems with drugs and disorder were addressed.

On the other hand, The Arches’ lawyer pointed to management’s “zero tolerance” policy: in all but a small number of instances the police had only become aware of drug misuse because of his client’s diligent approach to detection and reporting.

In fact, the lawyer said the club had more security and medical measures in operation than any other venue and the imposition of any sanction would simply shift the problem to other premises with far less robust procedures.

Within days of the board’s decision – which cuts off a major source of funding for the arts venue and leaves its future hanging by a thread – around 30,000 people had signed an online petition calling on the ruling to be reversed.

While it’s not my place to comment on the merits or otherwise of the board’s move, this major furore does point to a major gap in the Licensing (Scotland) Act 2005 that so far hasn’t received nearly enough attention.

If a licensing board suspends or revokes a premises licence, the operator is able to seek “interim recall”.

That’s a procedure allowing a sheriff to place the sanction in abeyance until a final decision has been taken on an appeal if “on the balance of convenience” it is appropriate to do so.

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

This implements a recommendation put forward by the Nicholson licensing law review committee – but with a major omission.

The committee said: “Where a sanction involving closure of licensed premises for any period, or a reduction in authorised hours, has been imposed by a licensing board, and the premises licensee concerned has marked an appeal against that decision, he or she should be entitled to apply to the local sheriff for interim suspension of the sanction pending disposal of the appeal. However, where interim suspension is not granted, the sanction should remain effective pending the determination of any appeal.”

Crucially – and inexplicably –  the 2005 Act makes no provision for ‘interim recall’ where hours have been cut back or any other variation been imposed by a board – even though such a step could be as damaging as a suspension or revocation.

Perhaps by way of a trade off, where a review results in a licence being suspended or varied, the board is empowered to reverse its decision “if satisfied that, by reason of a change of circumstances, the variation or suspension is no longer necessary”.

However, it’s not hard to see that in many cases securing that sort of result will be a real challenge, at least in the short term.

There’s a second leg to this problem – the time factor.

Although there was an expectation that steps to streamline appeals to the sheriff court would reduce unacceptable delays, the result has been disappointing.

In the last high-profile case, a licence was revoked in June 2013. A sheriff heard the case some five months later; but the procedure wasn’t completed until December 2014 when Court of Session judges issued a final determination (which, as it happened, upheld the licence revocation).

All the while the licence holders had continued to operate normally with the benefit of ‘interim recall’.

From both a trade and public interest perspective that sort of delay is a positive scandal.

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