Crime and Punishment? Nelson v Renfrewshire Licensing Board 2013

A SHORT VIEW ON THE DECISION IN NELSON v RENFREWSHIRE LICENSING BOARD (22 OCTOBER 2013) CONCERNING LICENCE REVIEWS, SUSPENSION, AND PROTECTION OF THE LICENSING OBJECTIVES

The decision in Nelson v Renfrewshire Licensing Board (22 October 2013) is another case in which the courts have determined a licensing board has acted incorrectly in punishing a licence holder by suspending his licence for past misdeeds, following LIDL UK GmbH v City of Glasgow Licensing Board (2013) CSIH 25 (on which I blogged here).

In Nelson, the licence holder had appointed a manager and that manager had allowed a lock-in to occur. There were two other incidents narrated in the review but it was agreed that these did not form a substantive part of the Board’s decision. Mr Nelson was unaware of the lock-in occuring and had later sacked both the manager and another employee who was present.

The then Strathclyde Police has requested the licence be reviewed. The Board suspended the licence with immediate effect for 2 weeks as a result of this incident.

A number of interesting points come out of this case:

• The court did not agree with the Respondents that LIDL should only apply in cases concerning a failed test purchase and said that it was clear from the decision that it is not restricted but of general application to the law in relation to reviews under the 2005 Act.
• The court agreed that the Board had erred in law in finding that the grounds of review had been established because there was no act or ommission on the part of the licence holder which had compromised the licensing objectives. It was not correct to consider that a licence holder had failed to discharge their responsibility by leaving the premises to be run by the manager because the licence holder had, up until the lock in, no evidence or information that the manager would be anything but a responsible manager. The licence holder had not allowed a serious incident to occur.
• The board, in it’s statement of reasons, founded on the licensing objectives being imperilled but did not look at them individually or provide an explanation as to how any of the objectives has been breached. There was no link between the “failures” and which of the objectives was engaged.
• The board was wrong to impose a suspension of 2 weeks. Suspension, as per LIDL, should only be used as a corrective measure to allow steps to be taken whilst the suspension was in effect, to adopt actions which would remedy whatever the problem had been. The Board did not identify what those steps should have been. It appeared that the decision was one of a penalty rather than a measure intended to protect the licensing objectives going forward, and this was wrong in law.
• Sheriff Pender also criticised the Board for making the suspension take immediate effect as this robbed the licence holder of the opportunity to seek an interim recall without suffering the consequences of the suspension and described this as “draconian” in circumstances where it may take 4 or 5 days to get an application for interim recall heard, and in doing so follows the judgement in Tesco v Midlothian Licensing Board 2012 SCLR 575 in which the Sheriff also criticised the Board for imposing an immediate suspension.

The case is one of some importance to the trade, agents and clerks given its affirmation of LIDL, and especially because there are examples of licensing boards still appearing to take decisions in reviews not based on protection of the licensing objectives going forward, but to punish past events. In addition it also provides some clarity that the licence holder should not automatically be held to account by application of a form of strict liability because of the actions of another such as an appointed manager. I think that last point is especially correct when the actions or conduct is by a person who holds a personal licence and where it is clear that the alleged detriment has arisen by the action/inaction of that person, and where it is clear that the alleged detriment has not arisen by the action/inaction of the premises licence holder. In such circumstances the police should be pursuing a review of the personal licence only and it is not appropriate to review the premises licence just to make sure action is taken. That can be done by way of communication and if necessary intervention.