Should licensees be obliged to seek out better information from objectors?
Posted On: 18 April 2006
Author: Scott Blair
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This article is reproduced with the kind permission of Scottish Licensing Law and Practice.
The decision in Chief Constable, Strathclyde Police v North Lanarkshire Licensing Board and another, reported at page 35 of this issue, is scrutinised by SCOTT BLAIR, Advocate.
At one level this case is just a further restatement of earlier authority as to whether there is any practical onus on an applicant to rebut any negative inference that might be drawn from the terms of an objection. While in Din it had been held that there was no onus on an applicant to establish that any ground for refusal did not apply, this was qualified in McAllister v East Dunbartonshire Licensing Board 1998 SLT 713 to the extent that there was no onus on an applicant to satisfy the Board on all matters, at least insofar as points not taken by the objectors were concerned.
However, in some ways it goes further than earlier authority. For example, in McAllister there was no suggestion that the terms of the objection were unspecific. Moreover in that case the subject matter was the question of demand in the context of an application for a betting office licence. In that regard it might be reasonably maintained that the applicant is well-placed to deal with any objection given that the applicant might be thought to be in possession of all material facts.
It might open to question whether the same approach should apply in a situation where the applicant is unlikely to be in full possession of all relevant facts. In such a situation it might be thought that the rules of natural justice would require the applicant to be made aware of all relevant facts within the body of any objection itself and in advance of the hearing itself.
It is arguably one thing to justify a practical onus arising at the hearing itself because of the state of the evidence from all relevant parties before the Board as it emerges at the hearing but arguably quite another to in effect place a practical onus on an applicant in advance of a hearing to make inquiry of his opponent as to the basis of the case against him.
'Due diligence' undermined
Moreover, unlike the present case there was no question of the applicant in McAllister being able to rely on a statutory defence of due diligence and which might in turn be undermined by an inability to properly counter an objection because of a lack of proper notice. That might also be a point of distinction from the circumstances in McAllister.
Another difficulty with the approach taken by the Court is that, looking at paragraph 23, of the opinion, and indeed the opinion as a whole, it seems to be implicit in the approach taken by the Court that the Chief Constable can be assumed to be a 'responsible' objector and will in turn endeavour to co-operate with any requests made for further information. The inference appears to be that it was the status of this particular objector which has been treated as being relevant as to whether a licensee should have approached that objector for further information.
How far should that indulgence be taken? Should a local authority or Community Council be given this apparently favoured status? Can they be expected to co-operate in the way in which the Court assumed would be forthcoming from the Chief Constable?
Conversely one is perhaps left wondering if an objection from an objector in a less favoured category would be entitled to the same assumption that the Court seems to have made in relation to the Chief Constable. There is nothing in the Act which places objections from the police (or indeed any other public authority) in a more favoured position than the ordinary citizen.
There might be a danger in taking this line too far in that the status of the objector might be used to bolster objections which are unspecific or at least make it easier for it to be argued that there exists a practical onus on a licensee to raise possible lack of specification with such an objector.
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