Decisions founded on speculation will be open to challenge
WHAT if? It’s a question we habitually ask ourselves when contemplating a particular course of action.
But, as a recent appeal case demonstrates, it’s an exercise licensing boards require to undertake with a real degree of caution when assessing the consequences of granting a licence.
Martin McColl Ltd, trading as McColls, sought a licence for a convenience store in an East Kilbride housing estate.
As I’ve said before on this page, applications involving small shops frequently attract local residents’ objections based on predictions of alcohol-related antisocial behaviour.
In this case, true to form, 15 people wrote to the licensing board expressing fears that the sale of alcohol from the premises would exacerbate youth disorder and street drinking problems in the area.
The application was rejected on the ground that a licence would be inconsistent with two licensing objectives: preventing public nuisance and protecting children from harm. (The latter objective has since been changed to add a reference to “young persons”.)
No doubt these anxieties were genuinely held; but, as the sheriff decided, they simply weren’t supported by any evidence.
No concerns were raised by Police Scotland.
In fact, their ‘antisocial behaviour report’ – covering a one-year period over a 50-metre radius – disclosed no reports of street drinking, no reports of persons being drunk and incapable and only two reports of disturbances.
That reassuring picture was supported by an email from the council’s ground services department confirming that there had been no concerns about antisocial behaviour in the area.
In what struck me as a particularly robust judgment allowing the appeal and granting the licence, the sheriff pointed out that alcohol retailing will almost inevitably carry at least some possibility that trouble might follow.
The potential for the sale of alcohol to youngsters will always command a licensing board’s attention.
But if application decisions were taken on such a risk-averse basis, “very few applications might be granted” – and, of course, the premises licence review procedure operates as a safeguard if alcohol sales did in fact give rise to problems relevant to the licensing objectives.
There’s another aspect to this case that deserves particular attention.
An applicant for a premises licence needs to declare any convictions for certain types of offences. (At the moment, “spent” convictions needn’t be disclosed, but the law is due to be changed.)
On two occasions in the previous five years, McColls had been fined for the sale of alcohol to underage persons. Although the sales took place at shops in England, the breaches count as “foreign offences” and required to be taken into account by the licensing board.
So, McColls’ lawyer outlined extensive measures in place to prevent under-18s purchasing alcohol, including a staff training programme that exceeded the requirements of the Licensing Act and was more extensive than in England.
The board was also told that the shop wouldn’t offer the sort of products that might be attractive to teenagers.
Nevertheless, it didn’t accept that the training regime was as robust as claimed and considered the English convictions to be “of some relevance”.
But, according to the sheriff, McColls’ record required to be measured against the scale of its operations – 1200 stores in the UK, including 120 in Scotland – and, north of the border it had never been convicted for an underage sale nor had a licence been reviewed.
On that basis, no reasonable board could have refused the application.
From a trade point of view, this is a very welcome judgment.
The potential for the sale of alcohol to underage persons is a major issue that will always command a licensing board’s attention.
Those who fear that the grant of a licence will have a negative impact on the quality of their life quite properly have a voice in the process.
But any licensing board decision founded on speculation and lacking a sufficient factual basis will always be vulnerable to this type of challenge.
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Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.
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