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The Nicholson Committee: Review of Liquor Licensing Law in Scotland
CHAPTER 11
APPEALS
The present situation
11.1 The current statutory provisions relative to appeals are to be found in section 39 of the 1976 Act. Putting it shortly, an appeal lies to the sheriff against any decision of a licensing board in respect of which the statute, either expressly or by implication, grants a right of appeal. The form of appeal is by summary application, 1 and in considering an appeal the sheriff may hear evidence by or on behalf of any party to the appeal. 2 A licensing board may be a party to any appeal. 3 It also appears to be the case that a chief constable may be a party to an appeal regardless of whether he lodged objections or observations when the matter was before the licensing board. 4 Where an appeal is upheld the sheriff may remit the case to the licensing board for reconsideration, or he may reverse or modify the decision of the board. 5 An appeal may be upheld only if the sheriff considers that the licensing board in arriving at its decision: (a) erred in law; (b) based its decision on any incorrect material fact; (c) acted contrary to natural justice; or (d) exercised its discretion in an unreasonable manner. 6 Finally, it is to be noted that an appeal against a decision by a sheriff lies to the Court of Session on a point of law. 7
11.2 In certain respects the provisions in the 1976 Act which we have just summarised do not fully reflect the recommendations which were made by the Clayson committee. That committee recommended that appeals should be taken to the sheriff principal and that the form of appeal should be by way of stated case. 8 As has been seen, the Act provides for an appeal to the sheriff rather than the sheriff principal, and the appeal procedure is by way of summary application rather than by stated case.
Criticisms of the present arrangements
11.3 The present arrangements for appeals have been criticised by our consultees on a number of grounds. First, a very common complaint has been that the present procedures before sheriffs are extremely slow with, in some instances, many months elapsing between the marking of an appeal and it actually being heard by a sheriff. A delay of this kind is seen as being particularly unacceptable in cases where a licence has been suspended under section 31 of the Act on the basis that that is in the public interest, but the licensee is then able to continue in business for a very long time simply by marking an appeal which will take many months to be disposed of. We have earlier made proposals to deal with this particular problem, 9 but of course delay in disposing of any kind of appeal is undesirable. No doubt the delays which occur at present are occasioned by the very large volume of other business which has to be dealt with by sheriffs; but we agree that delays of the kind which occur at present are undesirable in the context of licensing law and practice.
11.4 A second complaint which has been made against the present appeals system is that, since not every decision made by a licensing board is open to appeal in terms of the Act, the consequence is that some appeals have to proceed by means of the expensive and time-consuming procedure of judicial review. This is a problem which has arisen particularly in relation to decisions relating to applications for extensions of permitted hours under section 64 of the Act where there is no provision allowing an appeal to the sheriff against such decisions. We suspect that the reason why there is no such provision stems from the fact, which we have previously mentioned, that the Clayson committee, and presumably therefore those who drafted the 1976 Act, considered that extensions would only be applied for very occasionally and in a limited range of circumstances and locations, such as in holiday resorts during the high season. As we have seen, however, the reality in recent years has been vastly different, and there can be little doubt, we think, that, had what has actually happened been foreseen in 1976, a right of appeal to the sheriff would have been conferred in section 64 of the Act.
The court to which an appeal should lie
11.5 In relation to the time within which appeals are disposed of at present we have made some inquiries of our own with the assistance of sheriff clerks around the country, and those inquiries have confirmed that in many instances there is a lapse of a considerable number of months before an appeal is heard and finally disposed of. That, it seems to us, is the inevitable consequence of a system which adds licensing appeals to the already very heavy workload which falls on sheriffs in the sheriff courts. It is, however, a consequence which in our view is inappropriate and undesirable. Our own inquiries have also revealed, however, that the actual number of appeals in a given year is quite small - usually no more than about 30 throughout the country as a whole. That led us to reconsider the proposal originally advanced by the Clayson committee, namely that appeals should be heard by sheriffs principal rather than by sheriffs. Largely on the basis of our Chairman's personal experience of the office of sheriff principal, we came to the view that a relatively small number of appeals could be accommodated within the workload of sheriffs principal and that, were they to be dealt with in that way, they would be disposed of very much more quickly than is the case at present. Our Chairman discussed that with the other Sheriffs Principal. They agreed with our conclusions and confirmed that they could deal with relatively small numbers of licensing appeals quite speedily and without adverse consequences for the rest of their appellate workload.
11.6 In this connection we should mention that some of our consultees suggested the creation of a new appeal tribunal to deal with licensing appeals. One such suggestion was that there should be a tribunal consisting of a legal chairman and two lay members. Suggestions of this kind were advanced partly on the basis that a tribunal of the kind proposed would be able to deal with appeals more speedily than is the case at present, and partly on the basis that a single appeal tribunal would ensure consistency of decision-making. (Some of our consultees expressed the view that under the present system some inconsistency of approach is to be seen around the country.) Given the relatively small number of appeals that have to be dealt with at present, and even assuming that there may be some increase in that number, at least in the first few years after the introduction of new legislation, we do not consider that the costs which would be involved in setting up a wholly new tribunal could be justified. Accordingly, we do not favour that proposal. However, we consider that the objectives of that proposal, relative to speedy disposal and consistency of decision-making, are likely to be met were appeals to be heard in future by sheriffs principal. We have already commented that such a system is likely to result in appeals being disposed of much more speedily than is the case at present. Moreover, since there are only six sheriffs principal, who meet together regularly to discuss matters of common interest, we consider that any risk of inconsistency in their approach to licensing appeals is likely to be small. In all the circumstances, therefore, we recommend:
48. An appeal against a decision taken by a licensing board should in future be heard by the sheriff principal within whose sheriffdom that licensing board is located.
Decisions against which an appeal may be taken
11.7 We can see no good reason why all decisions taken by a licensing board, other than purely procedural ones, should not be open to an appeal to the sheriff principal. Under the general licensing scheme which we are proposing licensing boards will be required to make a wide range of decisions apart from simply granting or refusing applications. In the case of new applications for premises licences, or applications for their variation, boards will be required, by the attachment of terms and conditions, to tailor a licence so that it will meet the criteria upon which it is to be granted: and those terms and conditions will prescribe authorised opening hours, and much more besides. Moreover, under our proposals licensing boards will have powers to review licences and to order sanctions where the terms of a licence have not been appropriately observed. It is our view that decisions on all such matters should be susceptible to an appeal. We therefore recommend:
49. All decisions taken by a licensing board, other than purely procedural ones, should be open to an appeal to the sheriff principal.
Form of appeal
11.8 We have already noted above that, contrary to what was recommended by the Clayson committee, the form of appeal which exists at present is a summary application rather than a stated case. We have considered whether there would be advantage in reverting to the recommendation made by the Clayson committee.
11.9 The main difference between the two procedures is that, under summary application procedure, each party to the appeal in effect sets out in written pleadings its version of the facts and its contentions regarding the decision appealed against. Under stated case procedure, on the other hand, an appellant would lodge grounds of appeal and thereafter a licensing board, with the assistance of its clerk, would prepare a document containing a statement of the facts which had been found to be established, a note setting out the reasons for the decision which had been arrived at, and one or more questions, to be answered by the appeal court, designed to focus the issue or issues raised by the appeal. A stated case would in the first instance be issued to parties in draft, and they would have an opportunity to propose adjustments to any part of it prior to a final version being completed and signed.
11.10 We tend to the view that stated case procedure is better suited to an appeal than summary application procedure. Stated case procedure is commonplace for a wide range of criminal appeals and also for a certain number of appeals in the civil courts. It has the advantage that it provides an opportunity for the body whose decision is being challenged to set out clearly the matters which it took into account and the reasons for its decision, and it is likely, we believe, to make it easier for the appellate court to focus on the question whether or not a ground of appeal has been established. We have discussed the possibility of a change to stated case procedure with licensing board members and with clerks to licensing boards, and they have all said that they would see some advantage in such a change. We therefore recommend:
50. An appeal to the sheriff principal should proceed by means of stated case.
11.11 If effect were to be given to the foregoing recommendation it might be thought that there would be no continuing need for the provision in the 1976 Act 10 which requires a board to give its reasons for arriving at certain decisions when asked to do so by an applicant or an objector. It is, of course, likely in any event that, by virtue of the jurisprudence of the European Court of Human Rights, a licensing board is now under an obligation to give some reasons, at least orally, at the point when any decision is made in respect of an application. However, we take the view that a provision similar to that in section 18 may be useful even if in future appeals are to take place by means of stated case. Quite often, we suspect, a potential appellant may be uncertain whether or not to proceed with an appeal, but will be able to form a clearer view on that if he knows the reasons why a court or tribunal has decided against him. If, on seeing those reasons, the potential appellant decides not to proceed with an appeal, then of course all concerned will be saved much unnecessary work and expense. On the other hand, if the appeal proceeds, the licensing board will already have a statement of reasons which, with any necessary expansion, can be incorporated into the stated case. For the foregoing reasons we recommend:
51. Notwithstanding our recommendation that appeals should proceed by means of stated case there should be continuing provision enabling a person who is dissatisfied with a decision taken by a licensing board to request a statement of reasons from the board prior to marking any appeal.
Participation in appeal hearings
11.12 We have already noted that, in addition to an appellant and, if they are not the appellant, any objectors, a right of appearance at an appeal is also conferred on a licensing board and on the chief constable. So far as a licensing board is concerned there is, we believe, something of an anomaly in a situation where the body whose decision is the subject of an appeal is also permitted to be a party to that appeal; and, indeed, some licensing boards have said to us that the costs associated with such an appearance are unwelcome. On the other hand, other consultees, including the Judges of the Court of Session, have said to us that there is advantage in having appearance on behalf of the licensing board since otherwise there is likely to be no contradictor to the submissions being advanced on behalf of the appellant. That reasoning, of course, is particularly pertinent under the present appeal procedure by way of summary application since that procedure requires the lodging of written answers by any party who proposes to oppose the application. Since few objectors have the financial resources to fund a court appearance, the likelihood at present is that the only body likely to oppose an appeal, and to set out reasons for sustaining the decision appealed against, will be the licensing board itself. However, that consideration will largely disappear if in future appeals were to proceed by way of stated case since a licensing board's findings in fact, and the reasons for its decision, will all be fully set out in that document. For that reason we do not consider that in future a licensing board need ever feel obliged to appear as a party to an appeal. On the other hand we are reluctant to recommend the removal of an entitlement to be a party to an appeal should a licensing board ever consider that to be desirable. In fact, a choice is given by the present provision in the 1976 Act, and we consider that that choice should remain. We accordingly recommend:
52. As at present, a licensing board should be entitled to be a party to any appeal.
11.13 The position of a chief constable is, however, rather different. There can be no doubt, of course, that he should be entitled to be a party to an appeal where, under the present system he has previously lodged objections or observations in respect of an application; and, by the same token, he should retain that entitlement even if, under our recommendations, he were in future to be limited to making observations rather than objections. However, it is not clear to us why a chief constable should be entitled to be a party to an appeal even in a case where he has not previously lodged objections or observations. 11 We have been advised by chief constables themselves that they have no desire to participate in appeals in cases where they had no earlier participation, and in such cases their only interest is in being advised of the outcome of the relevant appeals. We accordingly recommend:
53. There is no need to repeat the present provision which appears to permit a chief constable to be a party to an appeal even where he had not participated in the original proceedings before the licensing board.
Grounds of appeal
11.14 The grounds of appeal which are set out in section 39(4) of the 1976 Act have been the subject of many decisions by the courts over the years, and the result of that is that their meaning and content are now reasonably clear. That being so, we see no need to change the existing grounds of appeal except in relation to one of them. That is ground (d) which is that, in arriving at its decision, a board "exercised its discretion in an unreasonable manner". In Appendix C to this report we show how that ground of appeal has been interpreted over the years in a manner which is similar to what are usually referred to as "the Wednesbury principles". Those are principles which were enunciated in 1948 in the English case of Associated Provincial Picture House Limited v. Wednesbury Corporation12 when it was said that a court will be entitled to interfere with a discretionary decision by a public authority only where that authority has come to "a conclusion so unreasonable that no reasonable authority could ever have come to it". We also show in Appendix C, however, that the Wednesbury principles have recently been disapproved by the House of Lords which has indicated that in future the benchmark for testing discretionary decisions by public authorities should be the test of proportionality as developed in the jurisprudence of the European Court of Human Rights. In our opinion those recent developments require that what is presently ground (d) of the grounds for appealing against a decision of a licensing board must be reconsidered with a view to finding a new formulation which reflects that European jurisprudence. We therefore recommend:
54. The grounds of appeal against a decision of a licensing board as presently set out in heads (a) to (c) of section 39(4) of the 1976 Act should be retained. However, the ground set out in head (d) should be replaced by one which reflects the concept of proportionality as developed in the jurisprudence of the European Court of Human Rights.
Other matters
11.15 There are three other matters which call for mention in this chapter. The first relates to the hearing of evidence by the appellate court. The second relates to the disposals which should be available to that court. And the third relates to the right of appeal to the Court of Session.
11.16 If, as we have recommended above, the form of appeal in future were to be by way of stated case rather than summary application, the need for a provision permitting the hearing of evidence in the course of an appeal should disappear. It is a generally accepted feature of stated case procedure that, particularly where all parties have had an opportunity to propose adjustments to findings-in-fact, those findings, as they ultimately appear in the stated case, must be accepted as accurate. In that situation we recommend:
55. It should no longer be competent for an appellate court to hear evidence by or on behalf of any party to an appeal.
11.17 Under existing law 13 where an appeal is upheld a sheriff may either remit the case with the reason for his decision to the licensing board for reconsideration of its decision, or he may reverse or modify the decision of the licensing board. It is plainly necessary and appropriate that an appellate court should have the power at its own hand to reverse or modify the decision appealed against when that appears to be the proper thing to do. However, given that, under our proposals, appeals may be taken in respect of incidental matters such as the terms and conditions which a board proposes to attach to a licence, we do not find it difficult to envisage circumstances in which, while upholding the appeal, the sheriff principal might consider that the board should be required to reconsider its earlier decision, possibly within a specified range of options. We therefore conclude that the power to remit to a licensing board for reconsideration should also be retained. On this matter, accordingly, we recommend:
56. On upholding an appeal the appellate court should, as at present, be entitled (a) to remit the case to the licensing board for reconsideration of its decision, or (b) to reverse or modify the decision of the licensing board.
11.18 In our view the right of appeal to the Court of Session should remain. We also consider that, as at present, any such appeal should be only on a point of law. We accordingly recommend:
57. The present right of appeal to the Court of Session on a point of law only should be retained.
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