EALING LICENSING SUB COMMITTEE FINAL REVIEW HEARING: THE BLACK GEORGE THURSDAY, 21 st AUGUST 2014

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1 EALING LICENSING SUB COMMITTEE FINAL REVIEW HEARING: THE BLACK GEORGE THURSDAY, 21 st AUGUST 2014 PRESENT: Councillors Shital Manro, Nigel Sumner and Lauren Wall ALSO PRESENT: Ealing Borough Council Lorraine Abbott Lee Teasdale Jimmy Umrigar Applicant: Metropolitan Police Rory Clarke PC Rachel Doran Sergeant Graham Edwards PC Kerry James Licensing Officer Democratic Services Officer Legal Officer Counsel, Cornerstone Chambers The Chair introduced the Sub Committee Members and outlined the procedure to be followed at the hearing. Summary of the Licensing Officer s Report Lorraine Abbott, summarised the Licensing Officer s report. Preliminary Point Additional Papers Mr Dadds, of Dadds Solicitors LLP, due to represent Mr Jugoslav Orelj, the Designated Premises Supervisor (DPS) of the Black George, advised prior to the hearing that neither he nor his client would be in attendance. Mr Dadds sent a letter dated 21 August 2014 to the Sub Committee which was received and considered before the hearing took place. The letter made reference to a consent order which had previously been considered by the Council. Mr Umrigar advised Members that the statement in the letter which stated that as of 7 August 2014 the responsible authority and the licensing authority (Council) were content to agree a consent order at the Magistrates Court to dispose of the Appeal was not correct. A consent order had previously been contemplated but due to the incident which led to the Expedited Review in July 2014 Mr Umrigar wrote to Mr Dadds on 6 August 2014 informing him that the compromise agreement which all parties had been working toward would no longer be proceeded with. Mr Umrigar also informed Members that he had told Mr Dadds that the Case Management Hearing set for 7 August 2014 at Ealing Magistrates Court would now be used to secure dates for trial and agree Directions. Mr Umrigar further informed Members that Mr Dadds agreed and was also happy for him (Mr Umrigar) to appear at the Magistrates Court for both himself and Mr Dadds. In his letter Mr Dadds proposed the following additional steps: 1

2 (i) (ii) (iii) (iv) (v) That no licensable activities shall take place in the basement nightclub for a period of 3 months so as to implement the conditions of the Consent Order. That the hours of operation including the hours which licensable activities take place are reduced in line with the Consent Order, so on Friday and Saturday opening to members of the public no later than 03:30. The supply and sale of alcohol by retail ceases at 03:00 etc. Employ a new general manager for the basement. Change of SIA Company to an approved SIA contractor. No glass beer bottles to be dispensed over the bar. The letter also advised that the General Manager of the basement nightclub, Wolf Minic, had been removed from the post and dismissed from employment following concerns regarding his behaviour. Presentation on behalf of the Police Mr Clarke reminded the Sub Committee of the background to the present application, which the Sub Committee had considered at the expedited hearing on 1 st August The incident of serious crime and disorder which brought about the review was a series of stabbings that occurred within the premises on 26 th July To help provide further context to the continuing series of troubles seen at the premises in recent times, a compilation of CCTV footage showing some recent incidents of concern was shown to the Sub Committee. Viewing of CCTV Images The Sub Committee viewed various CCTV images from around the premises, with Mr Clarke and officers from the Metropolitan Police providing contextual commentary. This included footage from 26 th May 2014 where two females who appeared to be very intoxicated were seen leaving the premises after 7:00 and arguing and fighting in the street outside the club. Also shown was footage from 12 th July 2014 in which a large scale fight took place outside the venue at 2:49 hours, the footage clearly showed a male on the floor being hit with a heavy metal post intended for separating the smoking area from the pavement. The final footage shown was a series of images from the stabbing incident on 26 th July 2014 which had led to the police request for an expedited hearing. A local authority camera showed a male arriving on his motorbike at 00:30 hours. At 2:44 he left the club and returned to his bike to remove something from under the seat. Despite there being a condition on the licence of no entry or re-entry after 01:30, he was allowed back into the club and did not appear to be searched. There were numerous breaches of the last entry condition captured on CCTV. There appeared to be no control over the smoking area, with people removing the ropes, climbing over the ropes and smoking outside the designated areas on the pavement. CCTV footage was then shown which had been provided by the venue. A dreadlocked male was seen loitering outside the club and talking to the door staff for some time. It appeared that the door staff refused him entry to the premises. He then spoke to the General Manager, Wolf Minic, for a few minutes before being shown 2

3 inside the club by one of the door staff. He entered the club at 02:36 hours and stayed for approximately ten minutes, in this time he became embroiled in a fight where the two victims were seen to leave the premises covered in blood. The suspect left via the fire escape, holding an empty spirit bottle, he was not prevented from leaving the premises. A member of the door staff was then seen on the CCTV being administered first aid by other staff members. The resulting injuries from the incident saw a member of the door staff receive a large laceration to the right forearm, causing a 10cm wound which had nicked an artery and later required seven stiches. Two patrons of the nightclub were also victims of the attack. The first had a cut to the left eyebrow, approximately 3cm in length, a cut of approximately 2cm to his nose and a larger cut of around 8cm to his bicep, these all required stiches. The second victim had a cut to his hand. This ran from the thumbnail to the joint that meets the hand and later required surgery. In addition to the injuries suffered by persons at the premises, the Police had a number of other concerns regarding the premises, such as allowing people to enter the venue beyond the times allowed within the licensing conditions. It also appeared that no risk assessment had been carried out for the function which had taken place in the nightclub on the night of the incident. Following the viewing of the CCTV footage, discussion took place around the difficulties involved in the licence. The premises were split, with the upstairs acting as The Black George pub and the downstairs basement acting as a nightclub known as 181 West. Where usually both parts would have operated under separate licences, both of these were under a single licence. Therefore if the licence was to be revoked for the nightclub, it would also mean revoking the licence for The Black George, which itself had not breached any licensing conditions. It was stated that if any measure were to be taken against the nightclub it would need to avoid revocation and instead make it clear that only the basement area of the premises was to have licensable activity removed. Discussion took place regarding the previously referenced letter received from Dadds Solicitors. It was stated that the consent order which was mentioned had been considered but not agreed, and following the incident of 26 th July 2014 it would not be considered any further. The Council wrote to Mr Dadds on 6 th August 2014 confirming that the consent order would not be taken forward. The additional steps proposed in the letter were felt to be inadequate in the current circumstances and considering the chequered history of the premises. Mr Clarke was asked to summarise the appellant s case. He stated that the history of incidents at the premises, including several that had happened in recent months, combined with a lack of certainty around the management s ability to prevent further incidents at the premises meant that the appellant wished for the interim steps to be made permanent, and that all licensable activity be removed from the basement area of the premises. The Sub Committee then retired at 1.25pm to consider its decision. The Sub Committee briefly reconvened in the Committee Room at 1.30pm to seek further clarification regarding their options with regard to the closure of the basement area of the premises. The Sub Committee then adjourned again to consider its decision at 1.35pm. 3

4 DECISION Having carefully considered the papers before it, including the police certificate, the representations made by the Police at the hearing and the letter dated 21 August 2014 from the premises licence holder s solicitors (who did not attend the hearing) and the Home Office Summary Review Guidance and S53 of the Licensing Act 2013, the Sub Committee determined that the following condition be added to the premises licence No licensable activity shall take place in the basement. REASONS FOR THE DECISION The Sub Committee determined that the serious incidence of crime and disorder which took place in the basement nightclub of the premises followed on from a history of repeated breaches of the licensing objectives. Accordingly, the Sub Committee was of the view that to prevent any undermining of the licensing objectives, particularly crime and disorder, it was proportionate and appropriate to determine that no licensable activities be permitted in the nightclub part of the premises alone. As the incident did not appear to be related to the ground floor public house part of the premises, the Sub Committee excluded that part of the premises from the restriction, and the Police concurred with this approach. Having carefully considered the range of interim steps available namely (i) (ii) (iii) (iv) (v) The modification of the conditions of the premises licence The exclusion of the sale of alcohol by retail from the scope of the licence The removal of the Designated Premises Supervisor from the licence. The suspension of the licence for up to 3 months The revocation of the licence The Sub Committee determined that it was both appropriate and proportionate to modify the conditions of the premises licence by the addition of a condition as follows:- No licensable activity shall take place in the basement. The hearing ended at 2.10pm. COUNCILLOR SHITAL MANRO, CHAIR 4

5 EALING LICENSING SUB COMMITTEE FULL REVIEW HEARING: THE BLACK GEORGE Wednesday, 5 th June 2013 PRESENT: Councillors Brian Reeves, Kate Crawford (Part) and Diana Pagan ALSO PRESENT: Ealing Borough Council Cameron MacLean Jess Murray Susanna Sinclair Jimmy Umrigar Applicant: Metropolitan Police Josef Canon DC Bob Boodhram Sergeant Graham Edwards PC Kerry James Owen Roberts PC Steve Robinson PC Les Smith Licensee David Dadds Jugoslav Orelj R Grkovic Democratic Services Officer Regulatory Services Licensing Officer Legal Officer Counsel, Cornerstone Chambers Metropolitan Police (Formerly of Ealing Licensing Police Team) Dadds Solicitors Designated Premises Supervisor (DPS) Owner/ Director of the Premises LICENSING SUB COMMITTEE: WEDNESDAY, 5 TH JUNE 2013 THE BLACK GEORGE, 181 UXBRIDGE ROAD, LONDON W13 9AA The Chair introduced the Sub Committee Members and officers. The other parties present introduced themselves. Request to Speak The Chair stated that Councillor Potts had submitted a written request to speak that was received after the due date for receipt of such requests has passed. He asked if any of the parties present had any objection to Councillors Potts speaking on the application. Councillor Potts stated that he had expected some of his constituents to be present and, in their absence, he simply wanted to present the points they had made in their representations, rather than present any new evidence. David Dadds, Solicitor-Advocate, representing the Respondents, stated that he objected to the request. Resolved: That Councillor Potts request to speak be refused. Preliminary Point Mr Dadds stated he wished to object to the inclusion of Councillor Kate Crawford on the Panel. He stated his objection was based on the fact that Councillor Daniel 1

6 Crawford, Councillor Kate Crawford s son, had chaired the original final Review hearing on 3 rd October 2011 in relation to these premises. In addition, Councillor Kate Crawford had attended the subsequent appeal hearing at Ealing Magistrates Court where there had been some criticism by the magistrates of the chairing of the final review hearing. He stated that he had raised this point with officers and had asked that Councillor Kate Crawford and Councillor Daniel Crawford be excluded from today s Sub Committee membership. Mr Dadds went on to say that was concerned that, even if there was no bias on the part of Councillor Crawford, there may be an appearance of bias. He stated that, if it were not possible to find another member of the Council s Licensing Committee to sit on the Panel, he would request an adjournment to allow a differently constituted Panel to be convened. Mr Canon stated that today s Panel was a wholly differently Panel from the one that heard the original Final Review. The fact that Councillors Kate and Daniel Crawford were mother and son was well known. In addition, the fact that Councillor Kate Crawford had attended the appeal hearing should not preclude her from sitting on the present Panel, in his opinion. Mr Canon went on to say that, if Councillor Crawford was minded to recuse herself, it was open to the Panel to continue to hear the application with just two Panel Members. Mr Jimmy Umrigar, Legal Adviser, noted that there had been no formal objection prior to the meeting regarding Councillor Kate Crawford s membership of the Panel. Mr Dadds reiterated the point that not only did justice have to be done, but it had to be seen to be done. Mr Umrigar advised the Panel that if it were minded to hear the application with just two members forming the Panel, the Chair would have a casting vote in the instance of the Panel being deadlocked in its decision. In response to a number of questions by Mr Umrigar, Mr Dadds confirmed that neither he nor his client had any objection to the Panel proceeding to hear the application with just two members, and that neither he nor his client would use this as the basis for, or a point in, any appeal proceedings that might take place. The Panel then retired to decide on the preliminary point raised by Mr Dadds. Resolved: That Councillor Kate Crawford recuse herself from the Panel and the two remaining members of the Panel proceed to hear the application. [Councillor Crawford then withdrew from the hearing] The Chair then invited the Licensing Officer, Ms Susanna Sinclair, to introduce the Licensing Officer s report. Ms Sinclair summarised the history of the application and the reasons for the case being remitted back to the Sub Committee by the High Court for a rehearing. Ms Sinclair then summarised the reasons for the Police application and the contents of the Licensing Officer s report. Presentation on Behalf of the Applicant Mr Canon, Counsel for the Police, stated that the premises comprised The Black George Public House on the ground floor and CJs Night Club ( CJs ) in the basement. It was CJs that was of concern to the Police. He stated that there were different terminal hours i.e. the time when sales of alcohol must cease, for The Black George and CJs, with The Black George ceasing to sell alcohol at 1.30am on Fridays and Saturdays, and CJs ceasing alcohol sales at 4.00am on the same nights. In response to a number of incidents or crime and disorder prior to Sunday, 4 th September 2011, the Police had written to the premises operators expressing their 2

7 concern about these incidents. On Sunday, 4 th September 2011, a drive-by-shooting took place outside The Black George at 4.54am. At the time of the shooting, the premises, in accordance with the conditions of its licence, should have been closed. However, as evidenced by CCTV footage, customers were still in CJs. It was this incident that was the trigger for the Police seeking an expedited review of the premises licence, a process which culminated in the High Court case of Little France Ltd v Ealing London Borough Council. The High Court had remitting the matter back to this Sub Committee with a request that the review application be reheard and that the Sub Committee provide reasons for any decision at which it might arrive. After the drive-by shooting, CJs closed and had only re-opened in March of this year. As the present proceedings were a rehearing of the original application, the Police relied on the statements of PC Robinson that had been considered at the original review proceedings. Mr Canon stated that he would show CCTV footage from the premises just before and after the drive-by shooting incident on 4 th September He stated that the footage would show that there were still people in the premises after the time it should have been closed i.e. 4.30am, and it would appear that the nightclub was still operating at 04:51 hours, minutes before the shooting took place. The Panel Members then viewed video footage of the premises which showed that the nightclub appeared still to be operating with only a few people leaving via the stairs, some with drinks. When the drive-by shooting took place, the CCTV footage showed patrons re-entering the premises and going back down the stairs into CJs. Mr Canon stated that the major concern the Police had was that the DPS had told them, when interviewed about the incident, that the premises were due to be refurbished the next day and that patrons had been allowed to stay late to allow an orderly dispersal. However, the CCTV did not show any attempt by the DPS or other staff to manage an orderly departure of customers. He went on to say that, if an operator could not manage an orderly dispersal within the time available, they should not extend the hours of operation, but stop selling alcohol at an earlier time those were the rules. Accordingly, this was not an acceptable explanation as to why people were still on the premises at the times shown on the CCTV footage. Mr Canon stated that the Police had sought a revocation of the premises licence and, at the original Review hearing, the Sub Committee had agreed to restrict the hours that the premises could carry on licensable activities. He stated that, since that review, the Police had had an opportunity to review their position and now asked that, rather than revoke the licence, the opening hours at weekends be restricted to 2.00am. A list of proposed conditions, which had been circulated, had been agreed by the Police and the Respondent. The Police now asked that further conditions be added to those already agreed, as follows (i) SIA accredited door staff to be on duty from 21:00 hours to closing time any night CJs was open later than 24:00 hours (ii) Only one SIA member of staff need be on duty if there were less than 50 customers in CJs (iii) The smoking area at the front of the premises be restricted to 10 persons at any one time. (iv) The last time for entry/re-entry to the premises to be hours if the premises were open until 04:00 hours, as requested by the Respondent; or 3

8 24:00 hours if the premises were open until 02:00 hours, as requested by the Police. It was noted that the Respondent had agreed to these further conditions, subject to the Sub Committee s decision regarding the terminal hour for the premises. Of fundamental importance to the Police was the terminal hour, i.e. that time when sales of alcohol must cease. Mr Canon stated that the operation of a guest list, referred to in the proposed conditions, was unacceptable to the Police, unless the condition relating to the guest list required the guest list to be confirmed 24 hours in advance. He went on to make the following observations (i) The later the premises were open, the greater the likelihood of people drinking more and the greater the possibility of crime and disorder (ii) This in turn placed a greater strain on limited police resources (iii) The later the premises were open, the greater the possible disturbance to residents and neighbours during sleep hours When it had been shown that the premises were not being managed in a responsible manner, there was an increased likelihood of all of the problems identified occurring later at night. Mr Canon went on to say the Police were of the view that the operators had not been willing to cooperate with the Police and, ultimately, there had been a breakdown in relations with the Police. However, he did not wish to dwell on this aspect as there may have been a myriad of reasons for coming to this view. In conclusion, Mr Canon stated that the Police now requested that the premises close at 2.00am, and that the proposed conditions that had been circulated and agreed by the Respondent and the Police, and the further conditions referred to in his presentation, be included in the premises licence. He also referred the Panel Members to the representations made by the Council s Environmental Health Team, and the considerable number of representations made by residents, the local MP, and others. In conclusion, it was Mr Canon s contention that the promotion of the licensing objectives could be achieved by reducing the terminal hour to 2.00am. In response to a number of questions, the following information was provided: (i) (ii) (iii) The purpose of the first proposed condition viz. The premises shall not be hired out to external promoters and shall provide in-house events organised by the management only. was to allow the premises owners to retain control of the management of the premises. This was in response to problems that had occurred when outside promoters had hired the premises to run their own events which had resulted in incidents of crime and disorder. The wording of Condition 3 relating to guest lists could be amended to allow the operation of a guest list for pre-booked functions where 24-hour s notice of the function was given to the Police. There was evidence to show that reducing the hours that licenced premises could operate resulted in a decrease in the number of incidents of crime and disorder. However, the respondent would have to see that evidence in advance of any hearing it was going to be used in the course of the proceedings. Presentation by Councillor Ann Chapman 4

9 Councillor Chapman noted that the reason that the Police application for a review was being reheard was because insufficient reasons had been provided for both the Sub Committee s original decision and the Magistrates Court s decision to refuse Respondent s appeal: not the that the Sub Committee s decision was wrong. She stated that it may have been the case that the reasons for both decisions were so apparent, it may have seemed superfluous to have spelled them out. However, she accepted that it was necessary to record properly the reasons for the Sub Committee s decisions. She stated many people were of the view that the correct decision was reached by the Sub Committee. However, there were residents who wished to see the imposition of more stringent conditions. [Councillor Chapman was given a copy of the proposed conditions that had been circulated]. Having looked at the proposed conditions, Councillor Chapman stated that it was essential that there was a last time for Entry and Re-entry, and that this should be no later than 12 midnight. She also proposed that the number of people permitted to use the smoking area on the pavement be restricted to five and a smaller number after 11.00pm. It had also been proposed that the operator install double doors and an acoustic lobby. It did not appear that the operators had looked at this suggestion. In conclusion, Councillor Chapman stated that she did not believe that the premises had demonstrated that they were operating in a responsible manner and that the Sub Committee should confirm its original decision as supporting the various licensing objectives. Presentation on Behalf of Regulatory Services Jess Murray, Noise Pollution Team, Regulatory Services, stated that Regulatory Services supported the submissions made on behalf of the Police regarding a terminal time of 2.00am. He stated that there had been no problems recently with the premises and no complaints. However, this was probably as a consequence of the premises having been closed until very recently. He stated that there had been noise problems associated with the premises in the past while under the present stewardship and before. He stated that, when the doors to the premises were closed, the Noise Team did not have an issue with noise escaping from the premises. However, late at night, when there was less background noise to mask the sound from the premises, there was a funnelling effect of noise from the basement up the stairs, which created significant noise problems when the doors at the top and bottom of the stairs leading to CJs were opened. This breakout of noise had resulted in warranted complaints from residents living opposite the premises. It was for this reason that the Noise Team had make recommendations regarding lobby doors [Mr Dadds confirmed that lobby doors had since been installed]. Regarding smokers, the Noise Team were concerned that this was properly managed as this was a source of noise nuisance. Mr Murray stated that there were also concerns about people arriving late at night, possibly in cars, causing nuisance in the form of car stereos and car doors slamming. He stated that the Noise Team had no powers to deal with these forms of nuisance. However, the later the terminal hour of the premises, the greater the noise problems posed by this sort of activity, as detailed in the written complaints by residents referred to in the Licensing Officer s report. In response to a number of questions, Mr Murray provided the following information: (i) He had managed the Noise Team since 2006 and had joined Ealing Council s Regulatory Services in

10 (ii) (iii) There had previously been complaints by residents regarding noise coming from the street, but no recent complaints about noise coming from the premises. There had been no objections by the Noise Team to several Temporary Events Notices (TENs) relating to the premises in the last 12 months. Presentation on Behalf of the Respondent Mr Dadds stated that the Sub Committee should not be persuaded that a terminal hour of 2.00am was appropriate based on the decision of the original Sub Committee hearing and the Magistrates Court decision. As no reasons, or inadequate, reasons had been given for the decision on both occasions, the Sub Committee could not place any weight or reliance on those decisions. He proposed that, if the Sub Committee placed any reliance on those decisions, it would be falling into error. Accordingly, the Sub Committee had to base its decision on the evidence before it today. Mr Dadds then addressed the following issues: Presentation by Environmental Health He stated that no new evidence had been placed before the Sub Committee today and there had been no complaints about noise from the premises since September He stated that, to address some of the concerns that had been raised, conditions were being offered in relation to the smoking area, and it had been agreed with the Police that the number of smokers at any one time be restricted to 10. In addition, there had been no objections to the recent TENs and no subsequent complaints, and this was evidence that that the Sub Committee should take into consideration in deciding what measures were necessary and proportionate. Mr Dadds stated that this was the appropriate standard to apply, as set out in the October 2010 Home Office Guidance on the licensing Act 2003, and not the current standard of what was appropriate under the amended Home Office guidance. Mr Dadds went on to say that, regarding the recommendations made by the Noise Team in 2011, lobby doors and sound limiters had been installed and the premises management monitored the smoking area. In relation to complaints, the licensing authority had only been able to produce six recorded complaints, and there was no evidence to link directly those complaints with the respondent s premises. He noted that, at the original hearing, only one resident had attended; no residents had attended the Magistrates Court hearing; and there were no residents present today, despite having been notified by Democratic Services of today s hearing. Mr Dadds, therefore, proposed that the Sub Committee place no weight on these complaints, which were now 21 months old, particularly as there was no opportunity to ask the complainants any questions or have them update the information before the Sub Committee. Further, in relation to the comments made by Councillor Chapman in her presentation on behalf of the residents, she had not produced any new evidence in support of the representations. Police Evidence Mr Dadds noted that the Police had made no objections to any of the TEN applications detailed in the Licensing Officer s report, all of which were events ton until 4.00am. There had been no suggestion that the later opening would have any of the consequences referred to by Mr Canon i.e. a greater likelihood of drunkenness, crime and disorder, disturbance to residents, and a drain on Police resources. He 6

11 stated that the Police had not objected to the TENs because they did not have any evidence to support any of these suggestions. Further, that that there had been no complaints about any of the TENs was indicative of the premises meeting the licensing objections. On this basis, the Police had not provided any evidence for the proposal to reduce the terminal hour to 2.00am. In addition, the Police had been disingenuous in stating that the operator had not been as responsive as they would have liked. On the contrary, as the respondent s solicitors, they had been very responsive and had held full and frank discussions with Council Officers and the Police, had communicated by letter, and had face-to-face meetings with the relevant Police Officer responsible for the premises. On the contrary, the Police had not been responsive. Consequently, it was for the Sub Committee to put an end to this criticism by the Police and to agree that the respondent be allowed to continue to operate until 4.00am accordance with the premises licence, and subject to the conditions that had been proposed. The 2011 Hearing and the Weight to be attached to the Evidence before the Sub Committee at that Hearing Mr Dadds stated it was for the Sub Committee to decide how much weight it wished to attach to the evidence that was before the Panel at the Review Hearing in He suggested very little weight, if any, should be attached to that evidence given the passage of time and the fact that the Police now appeared to accept that revocation was not appropriate. It was accepted that there had been a dreadful shooting incident in 2011, but there were no complaints about the way in which the premises were being managed in relation to crime and disorder. This present criticism was that people were leaving the premises later than usual. There was no issue of any criminal activity in relation to licensable activities. Accordingly, it was not for the Sub Committee to consider any matters of criminality. If the Police had thought there was an issue of crime being committed, they would have brought a prosecution. In addition, the premises had suffered a great detriment through the appeal process, as CJs had to remain closed until the Sub Committee s original decision was quashed by the High Court. Licence Conditions There were a raft of proposed conditions before the Sub Committee which had been in circulation for some considerable time and which had been agreed between the various parties. The premises had already dealt with the main cause of concern which was external noise. Mr Dadds then referred Panel Members to the table detailing incidents of crime at the premises and CJs in particular (he noted that CJs was now simply known as The Black George and formed part of The Black George Public House). He stated that all the crimes reported were at the lower end of the scale, including such things as handbag thefts, and that the only serious incident had been the shooting in Police Reasons for Requesting Reduced Hours to 2.00am The Police reasons for limiting the hours could be likened to reasons that might be given when considering a new application for a premises licence. He reminded the Sub Committee that the respondents already had a licence until 4.00am and that this was a Review hearing. To reduce the hours the premises could operate, and take away a possession belonging to the respondent i.e. the right to remain open until 4.00am, it was necessary for the Police to show, by means of evidence, that it was necessary and proportionate for the Sub Committee to make such a decision. It was 7

12 not sufficient simply to say that there would be a greater chance of crime and disorder if the premises were to stay open until 4.00am. There were plenty of safeguards in law that a licensee could take to address Police concerns regarding crime and disorder. Further, there was nothing to suggest that the shooting had anything to do with sale of alcohol at the premises. Regarding the issue about Police resources, it was an absurd submission to say that the premises hours had to be reduced as the Police did not have sufficient resources. Police resources were not a licensing objective and could not be taken into consideration: they were a matter for the Chief Constable and it was for the Chief Constable to make sure that the Police were adequately resourced. Licenced premises operators paid a lot in taxes to operate their businesses and it was for the Exchequer to determine how much money the Police were to receive in funds from the Exchequer. Residents Complaints Mr Dadds stated that there was no evidence to support allegations of disturbance to residents caused by the premises. Complaints to the Council s Environmental Health Team and the Licensing Team related, he believed, to the nearby takeaway premises that had been operating beyond the hours for which it was licenced. A number of conditions had been offered which were reasonable and which should give comfort to the Panel Members with regard issues raised by residents concerning noise. Purpose of the Review Hearing Mr Dadds stated that Licensing Act 2003 was very clear on the purpose of Review hearings. He stated it was for the Panel to look at the issue that was of concern and take measures that were necessary and proportionate to address that concern. In this instance, the matter that was of concern was the drive-by shooting that had triggered the Police application for a review. All the other instances raised had been addressed in correspondence and discussions with the Police and the Police were on oath as saying that, since the review hearing in October 2011, the premises had not been a cause for concern, and that the premises had been operating successfully, as evidenced by the TENs. Matters Arising Since 2011 Mr Dadds stated the Home Office guidance was clear that, for a matter to be relevant, there had to be a causal link between any matters arising and the incident complained of in the review proceedings. He stated there was no such link in the other matters referred to by the Police and the incident that was the subject of the review application. In summary, Mr Dadds stated that there had been a passage of time since the original review. The premises had operated since the Review without being a cause for concern and without objection by the Police and the Environmental Health officers to several applications for TENs. The one matter of concern, i.e. possible noise by smokers, had been addressed by the proposed conditions that were thorough and succinct. There had been no evidence of problems of migration presented i.e. the premises being a destination for customers leaving other late night premises. The conditions relating to last entry and re-entry and the number of SIA door were sensible. He stated that there was no rationale for the Police seeking a terminal hour of 2.00am. The premises had shown that they could operate until 4.00am without incident and, therefore, there was no reason why the hours should be reduced. In 8

13 support of this, Mr Dadds referred the Panel Members to his client s witness statement and to the crime statistics that had been circulated. These indicated that crime and disorder in the vicinity of the premises was either average or below average, depending upon the type of offences committed. In addition, the premises were not in a cumulative impact area. In response to a number of questions, the following information was provided: (i) (ii) (iii) Residents had not been offered the opportunity to add to the submissions they had already made in response to the initial application by the Police, as they had not been invited to submit further comments. Residents had simply been informed that the matter was to be reheard by the Sub Committee because of the High Court s decision to remit the matter back to the Sub Committee for the reasons stated. In addition, most of the objectors had work commitments that made it difficult for them to attend a daytime hearing. Residents who had made submissions had been notified of the date of the hearing and had a choice to either attend the hearing or be represented and have someone speak on their behalf. None had elected to do this. Case law required the licensing justices to consider objectors submissions, even if there had been no opportunity for the licensee s representative to test the evidence by way of cross-examination. How much weight was to be attached to such evidence was a matter for the panel members and the magistrates given the requirements for a fair hearing. However, in deciding what weight to attach to the residents submissions, the Sub Committee had to be mindful that these representations were now nearly two years old. (iv) Regarding additional representations by those who had already made submissions, Mr Dadds stated that he had said to officers at a meeting to discuss the rehearing, that he would have no objection to additional submissions from residents as other parties had submitted additional information. (v) In the crime statistics submitted in respect of CJs for the period 2012/13, it was recorded that there had been no crimes committed on the premises. The premises had been open this year for the TENs previously mentioned and referred to in the licensee s witness statement. The premises had remained closed pending the High Court decision and had only opened for the TEN events after the High Court decision to remit the matter back to the Sub Committee. (vi) Although the premises were licenced from 10:00 hours to 02:00 hours Monday to Thursday, it was not often that the operators stayed open until 2.00am on those nights. However, the operators wanted the option to open until 2.00am to avoid having to apply for TENs, and the Police had no objection to the premises being open until 2.00am. The hours that the Police had objected to were the premises opening until 4.00am on Fridays and Saturdays. (vii) It was not the intention that the premises would regularly open until 4.00am on Fridays and Saturdays. Rather, it was proposed that, if there were special events planned, the premises would open late with a suggested last Entry and re-entry time of 1.30am. Such events would be organised by the operators and not independent operators organising events of their own. 9

14 (viii) The capacity of CJs was 150 and there would be two SIA door staff on duty. Mr Dadds stated that, normally, the ratio was 1:100 SIA staff to customers. If there were less than 50 persons on the premises, there would be one SIA door staff on duty and, if more than 50, two SIA door staff, giving a ratio of 1:75 SIA staff to patrons if the premises were full. It was suggested by the Police that the norm for security staff was 1:50 SIA staff to patrons, but that they were happy with the proposals for SIA staff. (ix) There was no provision for SIA staff on the ground floor public house premises. It was stated that there had never been a need for SIA staff for The Black George Public House, only for CJs in the basement premises. In addition, the Police had not requested that there be SIA staff for the ground floor premises. (x) Not many persons would be seeking entry to the premises at 1.30am. However, this did allow patrons who had other engagements or who were working late to enter the premises. To make the time of last Entry and Re-entry any earlier would require evidence to show that this was necessary and proportionate, rather than what might be deemed desirable. (xi) There were three personal licence holders amongst the staff and the respondent was willing to employ SIA door staff from 21:00 hours. (xii) Door staff would be at the top of the stairs, near the main entrance to the premises and would supervise the smoking area that was on the public highway outside the main entrance. That there would be no more than 10 smokers from both the ground floor and basement premises in the smoking area at any one time. Summary of Presentation on Behalf of the Applicant Mr Canon stated made the following points: (i) (ii) (iii) This was a fresh hearing and it was right that the Panel Members take into consideration the evidence put before the Sub Committee today. What Panel Members could not do was take into consideration any evidence presented by the Police in previous proceedings as this was a de novo hearing of the Police application for review. CJs had been closed during 2011/12, possibly for refurbishment and because there was a problem with a sewage drain running through the premises. While the premises were closed, there had been no complaints from residents or others about the premises. It was in the context of the premises being closed that the Sub Committee had to consider the lack of complaints referred to in the course of the proceedings. The shooting incident on 4 th September 2011 had taken place at 4.54am. The premises licence stated that the premises should have been closed by 4.30am, but there were still patrons in the premises at the time of the shooting and the CCTV footage indicated that there was no effort being made by the staff or management to get customers to leave. (iv) There had been five TENs since the premises had re-opened and there had been no objections by the Police or Environmental Health to these TENs. However, a wholly different test had to be applied by the police in considering whether to object to a one-off TEN application. The Police had to consider 10

15 (v) whether they had evidence to object to a single event compared with objecting to a proposed permanent terminal hour for particular premises. The proposed 2.00am terminal hour for Friday and Saturdays was, to some extent, arbitrary, as was any terminal hour. However, three reasons had been given as to why it was necessary and proportionate in relation to the promotion of the licensing objectives to restrict the terminal hour to 2.00am. Specific incidents of crime and order were not necessary to bring back the terminal hour. Evidence that an operator was not a responsible operator was sufficient evidence to allow the Sub Committee to conclude that allowing the operator to remain open for longer could give rise to an undermining of the licensing objectives. In addition, it was a perfectly valid point to make that Police resources were more likely to be stretched to a greater extent late at night in dealing with incidents of crime and disorder. (vi) The proposed Guest List condition undermined the last Entry and Re-entry condition, and this condition become impossible for the Police to enforce if an operator was going to state that persons entering late were on a guest list. Unless the guest list was submitted 24 hours in advance, which was unlikely, the condition would be unworkable. Summary of Presentation on Behalf of the Respondent Mr Dadds responded to the submissions made on behalf of Police, as follows: (i) (ii) (iii) Evidence Given on Oath: The Respondent sought to rely on the evidence that had previously been given on oath by the Police and Council Officers at previous proceedings and which was referred to in his client s witness statement. That this was evidence that the Sub Committee could take into consideration in reaching its decision. Hours of Operation: There had been no suggestion of non-compliance with the hours that the premises were allowed to operate for almost two years. TENs: The same test applied when the Police were considering an application for a TEN as when making an application for a review of a premises licence i.e. the promotion of the four licensing objectives. Accordingly, the officer considering the application must ask, would granting the application undermine the licensing objectives. As the Police had not objected to the various TENs, they must have been of the opinion that the applications would not undermine the licensing objectives. (iv) Police Resources: This was not a licensing issue as it was not part of the licensing objectives. (v) 02:00 Hours Terminal Hour on Friday and Saturday: The Sub Committee was being asked to take something away from the respondent. The applicant was not seeking to be granted a licence until 4.00am. The Police had made a number of submissions to limit licensable activities until 2.00am on Fridays and Saturdays, but had not provided any evidence in support of their submissions that this was necessary and proportionate to promote the licensing objectives. Each case had to be considered on its merits. The Panel were referred to Paragraph of the October 2010 Home Office Guidance to the Licensing Act, which stated that 11

16 In deciding which of these powers to invoke [modify conditions, exclude a licensable activity, remove the designated premises supervisor, suspend the licence, or revoke the licence], it is expected that licensing authorities should so far as possible seek to establish the cause or causes of the concerns which the representations identify. The remedial action taken should generally be directed at these causes and should always be no more than a necessary and proportionate response. Accordingly, the Sub Committee s decision had to be based on evidence. (vi) Guest List: Unless there was evidence to show that it was a necessary and proportionate response to restrict the licence, conditions should not be imposed. The condition restricting last Entry and Re-entry to 1.30am was being offered by the Respondent, despite there being no existing condition to that effect, and no evidence to suggest that the condition was necessary to prevent crime and disorder. In conclusion, Mr Dadds stated the tests to be applied were to identify the cause or causes of concern. In particular, what was the trigger for the review i.e. what happened involving the basement premises that prompted the review, and what had happened since the application for review. In addition, the Sub Committee had to consider the conditions offered; the TENs that had taken place; and the lack of recent complaints regarding the premises. The Panel Members had to look for any causal links and evidence supporting those links when considering these matters. In addition, Members had to consider the weight to be given to the residents complaints, which it was submitted, should be none for the reasons stated. The Sub Committee then retired to consider its decision. Decision Having carefully considered the papers before it, the representations made by the parties, and the Home Office Guidance Section 53A Licensing Act 2003: Summary Review Guidance, the Sub Committee agreed 1. Not to revoke or suspend the existing premises licence; and 2. To amend the existing premises licence, as follows: The Black George Basement Nightclub 1. Opening Hours Sunday: 12:00 hours to 01:30 hours Monday to Thursday: 10:00 hours to 01:30 hours Friday to Saturday: 10:00 hours to 02:30 hours 2. Supply of Alcohol Sunday: 12:00 hours to 01:00 hours Monday to Thursday: 10:00 hours to 01:00 hours Friday to Saturday: 10:00 hours to 02:00 hours 3. Provision of Regulated Entertainment Sunday: 12:00 hours to 01:00 hours Monday to Thursday: 10:00 hours to 01:00 hours 12

17 Friday to Saturday: 10:00 hours to 02:00 hours 4. Provision of Late Night Refreshment Sunday: 12:00 hours to 01:00 hours Monday to Thursday: 10:00 hours to 01:00 hours Friday to Saturday: 10:00 hours to 02:00 hours Conditions To add the following conditions to the existing licence: A. Conditions Offered by the Premises Licence Holder (as amended by the Sub Committee) Prevention of Crime and Disorder 1. The premises shall not be hired out to external promoters and shall provide inhouse events organised by the management only. 2. CCTV system shall be installed and maintained to a standard acceptable to the Police. 3. No entry or re-entry after 24:00 hours, to be enforced by management and/or door staff. 4. Live music entertainment shall cease 30 minutes before the end of the sale of alcohol in order to allow customers to leave the premises in a calm and orderly way. 5. Experienced assistant managers/staff, who can responsibly exercise control, shall be on the premises at all times. 6. There shall be at least one Personal Licence Holder at the basement premises at all times. 7. All staff shall be required to sign a serving policy setting out whom they may serve, pointing out the licensing laws, and reminding them of the proof of age requirements. 8. The established procedure for the confiscation of drugs agreed with the local Police shall remain in force. 9. Right of admission reserved. 10. Known troublemakers shall be barred from the premises. 11. Incidents shall be logged and recorded in a logbook. 12. Door staff and management shall use their best endeavours to ensure that no one leaves with any bottles or glasses. 13. Door staff or management shall take ownership of the curtilage and use their best endeavours to ensure that it is kept clear of bottles/glasses/cans or other debris. 14. Door staff shall wear high visibility jackets (or similar attire) to make them readily identifiable on CCTV. 15. There shall be a well-advertised provision for a range of soft drink alternatives to alcoholic drinks. 13

18 16. A commitment to be part of Pubwatch if one is in existence. Public Safety 17. All fire safety equipment shall be fully maintained and operational. 18. An emergency lighting system shall be fully operational and maintained at all times. 19. A fire detection and warning system shall be in place along with fire extinguishers. 20. All furniture/soft furnishings shall comply with the relevant fire safety standards. 21. The recording of fire drills, alarm and emergency lighting tests shall be kept on site. 22. An internal Health & Safety due diligence and incident reporting system shall operate during the additional hours. 23. Floor staff shall conduct physical sweeps inside the premises to remove hazardous waste/objects. 24. Good access for disabled customers shall be maintained. 25. The phone number of an allocated taxi firm shall be displayed on the premises. 26. Public transport information (including night time travel options) shall be made available to all customers. Prevention of Public Nuisance 27. All windows and doors should remain shut especially during music/entertainment activities, except for access and egress, and alternative means of ventilation should be provided. 28. A suitable tamperproof sound limiting device shall be installed to ensure the control of output from any amplification system. The bass level as well as the overall sound level shall be set separately to a level that does not increase the existing background noise at any time at any neighbouring façade or within sensitive premises in the same or in attached buildings. 29. Reasonable steps shall be taken to encourage customers to leave the premises quietly. 30. Signage shall be displayed requesting that customers leave quietly. 31. Customers shall not leave the premises with open containers. 32. Empty bottles shall not be placed in recycling bins between the hours of 21:00 08: Deliveries shall be conducted during daytime to control noise nuisance. 34. Managers shall liaise with local neighbours as part of their duties and resolve any reasonable concerns in accordance with our Role in Community guidelines. Protection of Children from Harm 14

19 35. No adult entertainment (paid for by the company of a nude physical nature) will be permitted at these premises. Any children under 16 shall remain the responsibility of the accompanying adult when using the premises (and/or external area). Staff shall not be allowed to be in sole supervision of children which remains the responsibility of the accompanying adult at all times. 36. Bar staff shall be trained to prevent the sale of alcohol to under 18s. 37. No children shall be permitted on the premises after 21:00. B. Conditions Added By the Sub Committee Prevention of Crime and Disorder 38. SIA door staff shall be provided for the basement nightclub premises from 21:00 hours until close, as follows One SIA supervisor for up to and including 50 patrons; and Two SIA supervisors for more than 50 people up to the premises maximum capacity of 150. Prevention of Public Nuisance 39. No more than 10 patrons from both The Black George ground floor bar and the basement nightclub premises will be allowed in the designated smoking area at any one time. Reasons for the Decision The Sub Committee had considered very carefully the event that had culminated in an application by the Police for a review of the premises licence, namely, the particularly serious incident of a drive-by shooting of the premises. In particular, the Sub Committee was concerned about the poor management of the time allowed for drinking-up, and the fact that patrons were allowed to remain on the premises for 24 minutes after the premises terminal hour had passed, that is, up to the time the shooting occurred. Accordingly, the Panel were satisfied that 1. In relation to the Licensing Objective of the Prevention of Crime and Disorder, it was the Sub Committee s experience that reducing the opening times of licensed premises after a serious incident of crime and/or disorder significantly reduced the number of incidents of crime and disorder associated with those premises and the immediate area. This was evidenced by decisions of the Sub Committee in relation to licensed premises in Southall and Acton town centres where there had been a significant reduction in crime after curtailing the late night opening of particular premises. 2. In relation to the Licensing Objective of the Prevention of Public Nuisance, it was clear to the Sub Committee that the longer licensed premises were open, the greater the likelihood of drunken behaviour. The evidence of such behaviour associated with the premises as detailed in the representations of residents before the Sub Committee was overwhelming and could not be ignored. The public nuisance and disturbance caused to residents by the noise of car doors slamming and other noises associated with late night premises was far greater at 4.00am than the nuisance and disturbance that might be caused at 2.00am. The hearing ended at 2.30pm. 15

20 COUNCILLOR BRIAN REEVES, CHAIR 16

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23 A map to show the close proximity of the proposed venue to the Black George.

24 A picture of the site to show the proximity of the venue to residential properties. Galicja site and main entrance Craig House, a residential building with 54 flats. The windows in the highlighted area are to a lounge and bedroom.