ON THE MATTER OF EVIDENCE, ALLEGATION AND THE QUESTION OF LINKING DETRIMENT TO THE SALE OF ALCOHOL: ASK ENTERTAINMENT PUB LTD v ABERDEEN LICENSING BOARD and ASK ENTERTAINMENT NIGHTCLUB LTD v ABERDEEN LICENSING BOARD 2013
This was a conjoined appeal concerning two premises and two different licence holders which were taken together because the person at the centre of the hearing was deemed a “connected person” in both premises, namely the Society Bar and Aurum Nightclub, both on Union Street in Aberdeen.
Grampian police sought a review of both licences on the basis that Kirk Harrison, a connected person, had been identifed during a SCDE operation called Operation Abanda as someone connected to a group involved in the supply of Class A drugs. Through various evidence of personal meetings Mr Harrison had with those targeted in the operation, the police formed the view that he was a “facilitator”. In addition, those targeted had frequented both licensed premises in the company of Mr Harrison. The police sought review of both licences saying that the premises were being used as part of network of criminal activity.
At the hearing, the licensed board satisfied themselves that the police description of these associations with the criminal group was correct and that there was “sufficient information to indicate that licensed premises were being used for purposes likely to cause crime and disorder”. The Board revoked both licences.
The appeals were heard by Sheriff Principal Derek Pyle at Aberdeen Sheriff Court. The full decision can be read here.
The Pursuers appealed on a number of grounds including failure to apply the correct legal test, founding on Brightcrew v Glasgow Licensing Board, namely that the crime and disorder would have had to arisen from the sale of alcohol. Instead, the Board merely identified a “potential link”. SP Pyle makes an interesting point regarding how a Board should deal with the “potential” for detriment: “One can surmise that it would be difficult to satisfy a licensing board that a ground of review is established where only a potential breach of a licensing objective is averred, but that, it seems to me, does not mean that there could be no circumstances in which such an application could properly be granted“. In other words, I think he takes the view that it is difficult but not impossible to satisfy a Board that grounds for a review can be established based on the potential of something.
The appeal then turns to consider the point that there was no factual basis for the Board’s decision. This part of the appeal is crucial:
“In my opinion, the defenders have been unable to identify a proper basis in fact for their conclusion that the licensed premises were being used for purposes likely to cause crime and disorder. The difficulty for the defenders is that while they had ample evidence upon which they could find, as they did, that Harrison associated with known drug criminals they had very little to find a nexus (Kennedy v Angus Licensing Board, unreported, Forfar, Sheriff Veal, 22 August 2012) between that association and the licensing of the premises for the sale of alcohol. It seems to me that on that crucial point the only evidence is mere assertion by Grampian Police which has been repeated by the defenders. Even if it had been proved to the satisfaction of the defenders (which on the evidence it could not be) that Harrison was concerned in the supply of controlled drugs in Aberdeen contrary to the Misuse of Drugs Act, in order to establish the necessary link to the premises there would have had to have been evidence of the premises being used in furtherance of that criminal activity. As it was, the only evidence before the defenders was of known drug dealers being in the company of Harrison within the premises. There was no evidence of any conversations among them or some other interaction which might be about drug dealing or the like……While it might be unfair to say that the defenders merely accepted what the police said, it was nevertheless their role critically to analyse the conclusion which the police had reached. If they had done so, they would have found that there was in fact no evidence, other than of a most superficial kind, which created the necessary nexus between Harrison’s associations and the sale of alcohol in the premises.”
I would draw out three points from this excerpt – the Board failed to critically analyse the police evidence, the Board made a decision based on “superficial” evidence, and they did not link that (superficial) evidence to the sale of alcohol on the premises.
Both appeals were upheld.
There was a separate issue regarding the conduct of stewards at the Aurum nightclub which led SP Pyle to remit that case back to the Aberdeen Board to reconsider, but in the case of the Society Bar he was moved to reverse the revokation.
Looking at the decision for the first time, it seems to me support the view that a licensing board must and can only proceed on an evidential basis, and with regard to causality. It also supports the view that a Board should not be hasty in accepting police assertions without examining those assertions, especially where the evidence is tenuous: “the only evidence is mere assertion by Grampian Police which has been repeated by the [licensing board]” . It is, of course, a matter for the Board to attach such weight to the information before them as they desire, but in doing so they must explain why they prefer X over Y.
SP Pyle also seems to follow the dicta of Brightcrew and Kennedy (on which I blogged here) in that a Board must also be able to link alleged, actual, perceived or possible detriment to the sale of alcohol: that link is the licensing “nexus” referred to.