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 video call and joined the meeting by Microsoft
Teams. Police Scotland opted to proceed
by way of audio call and Sergeant David Holmes joined the meeting by telephone.
The Chair outlined the procedure
that would be followed and invited the Applicant to speak in support of his
application.
APPLICANT
Mr Plumb said that he had moved
up from England 12 months ago and was looking to improve his lifestyle and mental
health. He advised that it had been a
dream of his from 16 years old, to work in a catering van. He said that he had seen a gap in the market
and that he was really passionate about doing this and had everything set up
and ready to go.
POLICE SCOTLAND
Sergeant Holmes referred to a
letter dated 18 October 2022 from the Divisional Commander which advised that
the Chief Constable objected to this application on the grounds that the
Applicant was not a fit and proper person to be the holder of a licence by
virtue of a conviction dated 12 February 2020 which related to assault
occasioning actual bodily harm.
MEMBERS’ QUESTIONS
Councillor Kain asked Mr Plumb to
outline what the assault related to. Mr
Plumb advised that he and a friend went to Wales for a night out and water
sports. A friend of his friend also came
along on the night out and that he did not know him at this point. He advised that they went out for a meal and
a couple of beers and then on to a night club.
At closing time they came out of the club and he saw 20 to 30 people,
mainly girls, having a squabble and scuffle.
He said that after 2 or 3 minutes he realised that the person that had
come out with him and his friend was in a fight. He said he did not go near the fight. He advised that the boy his friend’s friend
was fighting with came towards him with his arms open and that he had taken
this as a threat and threw a punch. He
said that the Police arrived and he admitted to what had happened.
Councillor Kain commented on the
conviction being extreme for one punch.
He asked Mr Plumb if there were other charges. Mr Plumb advised that due to the person
having the fight first being a friend of his friend, and as he had fought with
the same person, his offence was put together with what the other person was
charged with. He advised that in the
Court they were charged with the same thing.
He said it was classed as if they had both fought at the same time but it
had not been like that.
Councillor Armour asked Mr Plumb
why he had not declared his conviction on his application form when it clearly
stated that all convictions should be declared.
Mr Plumb said it had been an honest mistake and that he had nothing to
hide. He advised that when the incident
happened he was the first person to hold his hand up and admit fault. He referred to going through the application
with his mum and girlfriend and that they had thought that as the suspended
sentence had been done there was no need to declare it.
Councillor Armour referred again
to the application form clearly stating that all criminal convictions should be
stated. Mr Plumb said he could only
apologise for not reading the application properly, or misinterpreting it. He said he was not trying to get away with
anything and that it was just a mistake.
Councillor Brown referred to part
5 of the application which referred to the ownership of land where the burger
van would be sited. She noted that Mr
Plumb had indicated he was not the owner of the land. She sought and received confirmation from Mr
Plumb that he had received permission from the land owner via an email. Mr Plumb advised that he had forwarded this
email 2 or 3 months back confirming he had permission.
Councillor Brown sought and
received confirmation from Mr Plumb that he had his Food Hygiene certificate
from Environmental Health. He advised
that there was another couple of courses he would like to do to improve things
and that he also had the experience of working in catering vans for 3 or 4
years.
Councillor Brown asked Mr Plumb
what days and times he would operate as this detail was not filled out on the
application form. Mr Plumb said he was
not sure yet and that he needed to work out when the best times would be for
business. He said he was thinking about
working Thursdays – Sundays from 8 am.
He hoped to provide for tourists as well as locals.
Councillor Brown asked Mr Plumb
if the disposal of a suspended prison sentence for 48 weeks and compensation of
£1,000 was just for him or if the other person got the same. Mr Plumb said the other person got a longer
suspended sentence of a few more weeks.
He did not receive a fine as he was on benefits and that he was given community
service.
Councillor Kennedy sought and
received confirmation from Mr Plumb that the victim was not hospitalised at the
time of the incident. Mr Plumb advised
that if he remembered correctly, the victim got 4 stitches the day after.
Councillor Kennedy asked Mr Plumb
how long before the conviction the offence occurred. Mr Plumb said the offence was in 2019 just
before Covid.
He said that everything was adjourned 3 or 4 times. He advised that he had pled guilty right away
but the other person pled not guilty which caused a lot of problems. He advised that at the last minute the other
person pled guilty. He said there was no
trial.
Councillor Kennedy commented on
Mr Plumb not declaring his conviction on the application form and advised that
as far as he could recollect failing to disclose a conviction could lead to
being charged with an offence. He asked
Mr Plumb if he had been charged for not declaring his conviction and Mr Plumb
said he had not been charged.
Councillor Kennedy sought clarity
on whether a person could be charged for not declaring a criminal conviction on
their application form. The Council’s
Solicitor, Fiona Macdonald referred to section 6 of the application form which
advised that anyone giving a false declaration could be liable to summary
conviction or a fine not exceeding £2,500.
She pointed out that this statement was directly before where the
application was signed by the Applicant.
Councillor Kennedy queried
whether Police Scotland had considered that option. Mr Plumb said that he had not tried to hide
his conviction. He acknowledged that it
was a huge error to leave it off the application form and that he wished he had
not. He said he was not trying to get
away with anything. He said that he did
the punishment and was trying to get on better with things now.
Councillor Howard commented that
the letter of consent from the landowner was ticked off as supplied on the
application. She sought and received
confirmation from Mr Plumb that he was set up and ready to apply for third
party insurance if his licence was granted.
Councillor Irvine sought and
received confirmation from Mr Plumb that the extent of his involvement in the
incident was a single punch and that he had then surrendered to the Police.
Councillor Irvine referred to the
publically available court report which stated something different – it said
that Mr Plumb had punched and kicked the person on the ground. He sought clarification on this from Mr
Plumb. Mr Plumb said that he had been
tarnished with the same brush as the other person. He said that he was calm and that it was the
other person that was pulled away by security staff for kicking the victim on
the ground. Referring to CCTV evidence,
he advised that he had pointed out to the Police who he was on the footage. When it came to Court he thought it would be
outlined who was who as all you could see was a scuffle in the distance but
this information was not provided. He
said that he threw one punch.
SUMMING UP
Police Scotland
Sergeant Holmes advised that he
had nothing further to add.
Applicant
Mr Plumb thanked the Committee
for hearing him out. He said that he
knew it would be easy to look at what he had done and that it was not
good. He advised that he would like it
considered that what was on paper was not necessarily a person. He advised that he had changed his lifestyle
and moved here for more tranquillity and peace of mind. He said his brain moved slower and this was
the next step to keep progressing. He
thanked everyone for listening.
When asked, both parties confirmed
that they had received a fair hearing.
DEBATE
Councillor Hardie advised that
the fact that Mr Plumb had not declared his conviction on his application form
did not fill him with confidence and due to the seriousness of the conviction
he was minded to refuse the application.
Councillor Armour sought
clarification from Officers as to whether or not the application was valid
because the convictions were not declared and because there appeared to be no
physical evidence of permission from the land owner. Ms Macdonald advised that it would be up to
Members based on what had been put forward by the Applicant. She said she would need to seek advice on the
validity of the application. She pointed
out that she understood there had been occasions in the past where convictions
had been over looked on applications and that the Police may have a view or not
on that.
Councillor Armour sought clarity
on whether or not the email from the land owner had been received by
anyone. Ms Macdonald advised that she would
have expected that any paperwork in relation to the application would have been
forwarded to the licensing section and that could be clarified. She said she understood everything in respect
of Environmental Health was done and dusted in advance of the hearing
today. She said there was no reason to
believe that the email had not been sent but she did not have a copy of it in
front of her today. She advised that in
the interest of fairness the Committee could decide to continue consideration
of this application but that would be up to them.
Sergeant Holmes advised that
Police Scotland had received a copy of the email that the Applicant had
referred to. Councillor Green commented
that he was aware the land owner had been advertising for someone to take this
business on.
Councillor Armour expressed his
concern about whether or not the application was valid and that he would be
looking for a continuation. With regard
to the conviction, he said he was split down the middle with that but he did
have concerns.
Councillor Hume advised that he
thought the hearing should be continued as he did not believe the Committee had
all the facts and that he could not make a decision today.
Councillor Kain agreed that there
should be a continuation as the application was incomplete in terms of dates
and times of operation and that the Applicant had been a bit vague about how
often and how long he would operate.
Councillor Howard said that she
could not remember seeing all documents for other cases and could not understand
why the Committee should be demanding them now.
She commented that the surroundings of a quiet car park would be quite
different from a night club and that she did not think Mr Plumb would get as
wired up or mad as in a drunken state outside a night club. She said she was inclined to give him the
benefit of the doubt. Referring to the
days of operation, she advised that when starting a new business in a new place
you would not necessarily know until you actually started what hours and days
of business would be best. She said that
she thought the Committee should give Mr Plumb the benefit of doubt and let him
try it and see and if it didn’t work out the licence could always be revoked.
Councillor Kennedy said that he
had sympathy for the Applicant but noted that the conviction was fairly recent
and had been omitted from the application form. He said that he would be keen to know if Mr
Plumb would be operating the van by himself.
He said he would like to give him a chance but it was pretty soon after
that event.
Councillor Brown said she was a
bit conflicted. She commented that Mr
Plumb only had the one conviction. She
referred to the missing bits and omissions on the application form and said she
would like to think that was just a mistake.
She said that although she was conflicted she would like to give Mr
Plumb the benefit of the doubt.
Councillor McCabe said she could
understand Councillor Brown being conflicted.
She commented on what Mr Plumb had gone through today before the
Committee and said that it was as bad as being at Court. She said that he’d had to sit here and that
it had not been a nice day for him for one offence. She referred to having her own catering
business and advised that she did not know what days she should open and when
she would be busy and that she’d had to adjust as she went along. She said she
would like to give Mr Plumb the benefit of the doubt.
Councillor Amanda Hampsey said
she would like to see a continuation of this case so that anything that was
felt by the Committee to be missing could be put in place. She said that she would like to see Mr Plumb
have a chance at this and if this meant a continuation to get things in place
it would give him a fair hearing.
Councillor Daniel Hampsey also advised
that he thought the Committee should go for a continuation. He said it was a positive thing to start a
new business. He referred to Mr Plumb
having only one conviction and said it would not be fair to him to have to wait
years and years before moving forward.
He said it would be nice to give him the benefit of the doubt.
Councillor Green referred to the
Committee being satisfied in the past with applications that had slight errors
or omissions and that the Committee have gone on to grant or reject
applications. He said he did not think
there would be grounds for continuing.
He advised that he personally thought the Committee should be making a
decision today and that the key thing was the conviction and whether or not Mr
Plumb was a fit and proper person.
Councillor Green referred to the
various views around the table and suggested that a vote should be taken as to
whether or not a continuation should be agreed or if the Committee should
proceed to make a decision today.
Councillor Amanda Hampsey advised that she would like to retract her
earlier comment to have a continuation and advised that she would second a
Motion from Councillor Green to come to a decision today.
Motion
To agree make a decision on the
application today.
Moved by Councillor Kieron Green,
seconded by Councillor Amanda Hampsey.
Amendment
To agree to continue
consideration of this application to allow for additional information to be
provided to the Committee.
Moved by Councillor John Armour,
seconded by Councillor Andrew Kain.
A vote was taken by calling the
role.
Motion Amendment
Councillor Brown Councillor Armour
Councillor Green Councillor Hume
Councillor A Hampsey Councillor Kain
Councillor D Hampsey
Councillor Hardie
Councillor Howard
Councillor Irvine
Councillor Kennedy
Councillor McCabe
Councillor Wallace
The Motion was carried by 10
votes to 3 and the Committee resolved accordingly.
Motion
On the basis of the Police
objection and the seriousness of the offence, to refuse the application on the
grounds that the Applicant was not a fit and proper person to hold a licence.
Moved by Councillor Graham
Hardie, seconded by Councillor Paul Donald Kennedy.
Amendment
To agree to grant a Street Trader
Licence to Mr Grayham Plumb.
Moved by Councillor Liz McCabe,
seconded by Councillor Fiona Howard.
A vote was taken by calling the
roll.
Motion Amendment
Councillor Armour Councillor Brown
Councillor Hardie Councillor Green
Councillor Hume Councillor A Hampsey
Councillor Kain Councillor D Hampsey
Councillor Kennedy Councillor Howard
Councillor
Irvine
Councillor
McCabe
Councillor
Wallace
The Amendment was carried by 8
votes to 5 and the Committee resolved accordingly.
DECISION
The Committee agreed to grant a
Street Trader Licence to Mr Grayham Plumb and noted
that he would receive written confirmation of this within 7 days.
(Reference: Report by Head of
Legal and Regulatory Support, submitted)