ON THE MATTER OF “DETERRANCE”, AND LINKING CONVICTIONS TO THE LICENSING OBJECTIVES.
A short but very interesting recent case from Forfar, Kennedy v Angus Licensing Board (22 August 2012) is an appeal following a 6 month suspension of a personal licence. Sheriff Kevin Veal upheld the appeal and overturned the suspension. The case considers issues such as the use of sanctions as a “deterrance”, the nature of licensing objectives, and how wide a discretion a Board enjoys.
A personal licence holder was convicted of drink driving in February 2012. She reported the conviction to the licensing board as required under the Licensing (Scotland) Act 2005. Separately, the police reported the matter to the licensing board under the auspices of s.83 of the Act and recommended that the personal licence be revoked having regard to “the crime prevention objective” of the 2005 Act.
The personal licence holder had been witnessed leaving the pub she operated in the small hours of the morning, entering her vehicle and driving into a parked car twice. She was later found to be over the legal limit and indicated that after clearing up for the night she had had consumed two or three glasses of wine.
In suspending the personal licence for 6 months as a result of this, the Board wished to “send a message” to other licensees. They considered the following matters to be relevant:-
(a) The the licence holder had a previous conviction for drink driving
(b) that the alcohol had been consumed in licensed premises
(c) The offence was a “serious disregard for the law”
(d) If she was unfit to drive, how would she have been able to attend to her responsibilities as a personal licence holder?
(e) on any view she should not have been consuming alcohol on the actual premises even though shut.
Suspension was considered to be commensurate with the crime prevention objective and would “send a message to deter other licensees”.
Sheriff Veal disagreed.
In his view, the Board erred in law by taking the view that the mere existence of the conviction impinged upon the capability of the licence holder to fulfill her duties as such. In other words, there was no link between the conviction and her status as a personal licence holder.
Sheriff Veal also considers the suggestion that the crime prevention objective under the 2005 Act can be read widely enough to include “deterrance” as false; and disagrees with the dicta of Sheriff Mitchell in Lidl v Glasgow Licensing Board 2011 (that case is under appeal to the Court of Session and will be heard at the start of November 2012).
He also states that the Board should take into account the sanction already imposed under the criminal courts and consider whether that is sufficient; and seems to my mind to agree with the appellant’s nod to Brightcrew when he says:
“I am unable to identify any relevant connection between the commission of this offence and the “licensing objectives” set out in section 4 of the 2005 Act. I am not persuaded that the very fact of the existence of this conviction should automatically incur an additional discretionary penalty at the hands of the Licensing Board.
I consider that the reference to”deterrance”…is…innappropriate“.
ARORA: A Reminder
The case is also interesting when you remember Arora v Glasgow Licensing Board (17 May 2010), the first personal licence appeal under the 2005 Act. In that case Mr Arora (represented ably by my colleague John Batters!) had applied for a personal licence. He had a conviction for drink driving but the police did not recommend refusal. The Board refused the application as a result of the presence of the conviction. This was overturned on appeal, and although the Sheriff was critical of the Board for not lending greater weight to the absence of a police recommendation to refuse, he also said: “The mere existence of the offence…..did not justify the conclusion that it was necessary to refuse the application. There required to be a discrete reason for the board’s conclusion that it was so necessary and that reason required to be properly explained. No such reason or explanation appears..”.
This, to my mind, chimes somewhat with Kennedy. In both cases the Board fail to create a link between the existence of the conviction and how that imperils the crime prevention objective.
THE “FOURTH OPTION”
As an aside, it interesting to note from the transcript that the “Recommendation” paragraph of the original report from the clerk to the members of the Board seems to gives the impression that there are only 3 options open to members at the original hearing, namely suspension, revokation of the licence, or endorsing the licence. This impression is borne out in evidence led by one of the members of the Board during the appeal who “confirmed that he was aware that there were three ‘options’ available to the Licensing Board“.
In fact there is a fourth option – which is to take no action. Although the Board is required to hold a hearing when the police notify them of a conviction (s.83(7)), they may issue an order with one of the three options (s.87(8)). The Act also says that in order for the Board to take one of the three options, it can do so if satisfied that it is necessary to do so for the purposes of the crime prevention objective (s.83(8)(c)).
In this case, the clerk’s full report (as noted in the judgement) certainly highlights all of this. But the initial “Recommendations” paragraph does not, and it seems to be that paragraph which “sticks” in the mind of the Board, going by the evidence led from the Board member at the appeal. Of course, all of this could have been aired at the hearing, but as I can only go from the judgement , the impression created is that member thinks “guilt” (i.e that the conviction imperils the licensing objective of preventing crime and disorder) is a pre-requisite of the hearing, and therefore only a punishment (one of the three options) is to be decided. This apparent mindset overlooks entirely the seperate and initial judgement as to whether a punishment is necessary.
My thanks to Brian Bell, Solicitor, who acted on behalf of the Appellant and kindly provided me with a copy of the transcript of this case.