Report by Head of Legal and Regulatory Support
Minutes:
The Chair welcomed everyone to the meeting. In line with recent legislation for Civic Government Hearings, the parties (and any representatives) were given the options for participating in the meeting today. The options available were by Video Call, by Audio Call or by written submission. For this hearing the Applicant opted to proceed by way of written submission and copies of this were circulated to the Committee in a Supplementary Agenda Pack for this hearing. Sergeant Gall, on behalf of Police Scotland, joined the meeting by telephone.
The Chair then outlined the procedure that would be followed and invited the Council’s Solicitor, Mr McMillan, to advise of the Applicant’s written submission.
APPLICANT
Mr McMillan referred to an e-mail from Ms Munro, dated 10th September 2020, which advised that a trial date had been set for 20th October 2020 at Oban Sherriff Court, consequently Ms Munro requested that the Hearing be postponed until such time as the outcome and verdict of this court case was known. Ms Munro’s e-mail also advised that a short continuation would allow her the opportunity to arrange legal representation.
Mr McMillan noted that the licencing team had sought and received clarification from Ms Munro that the court proceedings scheduled for 20th October 2020 related to an alleged incident which had taken place on 4th March 2020 and which was one of two incidents outlined within Police Scotland’s objection letter.
Mr McMillan asked that Members note: that this was the first request for continuation from the Applicant in relation to this application; that the Applicant would be in a better position to provide further information at a hearing following a continuation when the matter was not subject to ongoing criminal proceedings; that the Applicant was seeking a continuation to allow her to arrange legal representation; and that continuation of this matter would not prejudice Police Scotland or the Committee in the interim as the licence was currently suspended and suspension would remain in place until such time as a decision was made in relation to the application as per the terms of the Act.
The Chair then invited Sergeant Gall to speak to Police Scotland’s objection to the application.
POLICE SCOTLAND
Sergeant Gall confirmed that there were no objections from Police Scotland to the matter being continued until the outcome of the court proceedings was known as the licence was currently suspended. Sergeant Gall noted that the second charge which was outlined within Police Scotland’s objection letter had not yet been marked by the Procurator Fiscal. Sergeant Gall advised that since the Applicant had applied for the renewal of their licence a further two incidents had taken place in July involving the Applicant, details of which could be lodged into proceedings by letter for Members’ consideration at a future hearing.
The Chair then invited Members’ Questions.
MEMBERS’ QUESTIONS
Councillor Trail sought clarification from Mr McMillan as to whether the
licence previously suspended by the Committee had already expired. Mr McMillan
confirmed that the licence had not expired and noted that originally the
licence had been due to expire on 13th May 2020, however the
Applicant had submitted a renewal application on 1st May 2020 and in
doing so had extended the lifetime of the old licence until the Committee were
able to deal with the renewal application.
Mr McMillan noted that during this time Police Scotland had made a
suspension request in relation to the licence holder which the Committee had
dealt with previously and agreed to suspend the licence. Mr McMillan confirmed
that the Applicant’s licence was suspended and would remain suspended until a
decision had been made in relation to the renewal application. It was noted
that if the renewal application was refused then the licence would fall,
however if it was granted then the suspension would be lifted.
Councillor Blair requested clarification around the statement that
information provided to the Committee at this time could prejudice later
criminal proceedings and noted that he did not understand how this could be the
case if the applicant was truthful. Councillor Blair expressed dissatisfaction
at this and noted that the Committee was at times limited in what it could do
given a lack of available information until the outcome of a criminal case was
known, advising that at times this made him question the reason for having a
Committee to deal with licencing matters.
Councillor Kinniburgh responded that in this instance the licence had
been suspended following a suspension request from Police Scotland and the
Committee had therefore played its role.
Mr McMillan outlined the reasons underpinned in Scots Law for the
Committee being unable to compel any party to provide evidence. Mr McMillan
noted that it would be his advice that the Committee be aware that other
proceedings, of a significant nature, were ongoing and that they wait until the
appropriate time to consider all the available information, Mr McMillan also
advised that the outcome of the court case could be a significant factor for
the Committee to take into account when determining whether the Applicant was a
fit and proper person to hold a licence.
Councillor Blair noted that his concern was around the interim period
where further incidents could occur and Councillor Kinniburgh clarified that in
this instance the licence would remain suspended until a decision was reached
in relation to the application. Mr McMillan confirmed that he noted the points
raised by Councillor Blair and reiterated that the licence would remain
suspended until a decision was reached in relation to this application.
Councillor Redman advised that the right not to comment and the fact that
speech can’t be compelled was a right that everyone used to agree with and he
felt that speech should never be compelled.
Councillor Kinniburgh sought clarification from Sergeant Gall around the
second of the incidents outlined in Police Scotland’s objection letter.
Councillor Kinniburgh noted that the alleged incident on the 4th
March 2020 was the matter which was due to be considered by the court in
October and enquired as to whether the alleged incident on 31st
August 2019 was being progressed and whether there was a time limit on it being
brought to court. Sergeant Gall confirmed that the offences being libelled were
not subject to time barring and that the matter was currently with the
Procurator Fiscal who had not yet marked it.
Councillor Kinniburgh noted that if a continuation was to be granted,
when the matter came back to the Committee for consideration the only incident
which would have been considered by the court would be the alleged incident of
4th March 2020 and the other incident outlined in Police Scotland’s
objection letter and the further two alleged incidents mentioned by Sergeant
Gall would likely remain outstanding with the courts. Mr McMillan confirmed
that this was likely to be the case and noted that a continuation would also
provide Police Scotland the opportunity to lodge a supplementary objection
letter to advise of any of the recent alleged incidents which had been
referenced by Sergeant Gall.
Councillor Kinniburgh advised that he was minded to grant a continuation
pending the outcome of court proceedings in relation to the alleged incident on
4th March 2020. Mr McMillan confirmed that the Committee did not
require the court to convict the Applicant to take certain action and that this
could be revisited at the relevant time when all information would be available
to Members.
Councillor Kinniburgh sought clarification from Mr McMillan that if the
courts returned a decision on 20th October, the Applicant would be
able to appear at the next scheduled meeting of the Committee on 21st
October. Mr McMillan noted that in terms of Schedule 1 of the Act, 14 days’
notice should be given to the Applicant prior to any hearing, consequently it
was unlikely that the matter would be brought to the Committee on 21st
October. Mr McMillan gave assurance that the matter would be brought to the
next available Committee meeting following officers being made aware of the
court’s decision.
SUMMING UP
Police Scotland
Sergeant Gall confirmed that she had nothing to add to her original statement and that Police Scotland had no objections to the matter being continued until the outcome of the court case was known.
When asked, Sergeant Gall, Police Scotland, confirmed that she had received a fair hearing.
DECISION
The Planning, Protective Services and Licensing Committee agreed to continue the application until such time as matters have been considered by the Court.
(Reference: Report by Head of Legal and Regulatory Support, submitted; and written submission from the Applicant, submitted)