Licensing (Scotland) Act 2005 - Appeals & Judicial Review

Posted On: 07 September 2010

Author: Scott Blair

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On 1 September 2010 The Law Society of Scotland held a conference on developments one year on from the commencement of the Licensing (Scotland) Act 2005. A number of leading Scottish licensing solicitors spoke at the event and licensing counsel Scott Blair spoke on appeals and judicial reviews under the Act. As well as giving an overview of appeals procedure his talk concentrated on issues arising from interim suspension of licence review decisions and the developing caselaw on the licensing objectives. His paper is available to read here.

 

LICENSING (SCOTLAND) ACT 2005

APPEALS AND JUDICIAL REVIEW

First of all, do not be alarmed at the size of this paper! It is not my intention to go through it all. It represents an ongoing survey of developments in licensing appeals generally and I hope you will find it useful if you get the time to look over it more fully. If not interesting, then it might still prove useful if you have difficulty in getting to sleep of an evening!

I won't dwell much on appeals procedure. Instead I want to pick out some areas of substantive law which I think are of particular importance. I will talk to you in particular about a number of issues which in recent experience have come to the fore when considering the topic of appeals.

These include refusals based on inconsistency with licensing objectives; revocation and suspension of premises licence following review hearings; and overprovision.

Appeals under the 2005 Act

Under the Licensing (Scotland) Act 1976 there were two main avenues of redress.

Where the Act allowed a specific right of appeal (e.g. refusal of grant, refusal of permanent transfer, suspension etc) - this was to the Sheriff and from there a further right of appeal to the Court of Session. The procedure in the Sheriff Court was by way of summary application.

Where no specific right was given in the Act challenge was by means of judicial review. The most important decision amenable to judicial review was the regular extension decision. The Licensing (Scotland) Act 2005 provides a new method of bringing an appeal. It makes important changes in respect of the continuation of a licence pending the appeal. Judicial review may become important in a range of contexts.

It is fair to say that Stated Case procedure has attracted few supporters. It was the subject of criticism by Sheriff Powrie in the decision in Shafiq v North Lanarkshire Licensing Board [2009] 42 SLLP 24 to which I will come and it has I understand also been the subject of comment from Sheriff Principal Taylor at Glasgow Sheriff Court.

In view of those concerns and other comments the Licensing Law Sub-Committee of the Law Society raised with the relevant Committee of the Scottish Parliament the possibility of reverting to the old form of Summary Application.

Happily as a result of that intervention there will be a reversion to summary application procedure. Section 194 of the Criminal Justice and Licensing (Scotland) Act 2010 deletes the reference to appeal by way of Stated Case. Section 194 is not in effect yet but will be brought into effect by the Scottish Ministers in due course. It is anticipated that there will be another Act of Sederunt governing appeals under the reformed provisions. Meantime we still need to grapple with Stated Case.

More and more appeals are now coming through the system particularly as Boards are now hearing applications for reviews and the sanctions imposed as a result are challenged. Given the limited rights of appeal available it is likely that we shall begin to see challenges being brought by judicial review as well.

(Continued....For full article please click on the link at the top of the page.)