Scots review case could set legal precedent

A licensing board has exposed an anomaly in the Scottish Licensing Act by ruling that it wasn't fair to judge a premises review it had called.

Fife licensing board wanted to review the licence of a Kirkcaldy nightclub, but lawyer Tom Johnston asked whether it was fair for the board to sit in judgement over a case it had called itself.

The review was abandoned after the board voted four to three to agree he was right.

Board deputy clerk Frank Jensen said: "While the Board was entitled to make a Review Proposal, after that it was not clear how a fair hearing could take place. Any such hearing would be caught by the maxim and also by Article 6 of the European Convention on Human Rights."

Pubs in similar circumstances will be able to argue the Fife board set a precedent by agreeing the Licensing Act had created a technical anomaly in theoretically allowing boards to "act as judge and jury" by calling then also deciding review cases.

In future it will be argued that a board can only rule on a review sought by a third party, for example the police.

Tom Johnston told The Publican:​ "Full marks to the Fife board for agreeing with this point.

"Another board could have decided to sweep it under the carpet, leaving the licensee with the option of appealing - but that is a very expensive business that would typically cost around £10,000, and full costs to pay in the event of failure."

The move could eventually have repercussions in England where the coalition government has set out plans to give local authorities more powers regarding licence reviews.