Agenda item
Application for a Renewal of a Sexual Entertainment Venue Licence for Whites Gentleman's Club, 32 - 38 Leman Street, London E1 8EW - 2020-2021
Minutes:
At the outset of the hearing, Mr Jonathan Melnick, Principal Enforcement Lawyer, on behalf of the Chair asked both parties for their view on adjourning the consideration of the applications as the Committee understood that the appeal decision was due to be heard by the magistrates’ court on 4th and 5th November 2021. The Committee considered that awaiting the determination of that appeal would be of benefit to the parties and to the Committee.
Mr David Dadds, Legal Representative on behalf of the applicant, opposed an adjournment for three reasons. Firstly, that the Committee should not proceed to a determination based on the prior decision. Secondly, there was a right of appeal from the magistrates’ court to the Crown Court. Finally, he hoped to be given an opportunity to persuade the Committee to grant the applications today, which would have a bearing on the appeal.
Mr Tom Lewis, Team Leader Licensing, expressed concern that there was a possibility that the appeal hearing date may change. If the appeal was certain to be heard in November then he would have no objection to an adjournment but, in light of that uncertainty, he too was of the view that the applications should be heard and determined as scheduled.
Members adjourned the meeting at 7.00pm to consider this proposal and reconvened at 7.15pm.
In light of the parties’ representations, the Committee decided to proceed with the applications as scheduled. The parties agreed to a suggestion by Mr Melnick that both applications would be considered together since the issues raised and the submissions to be made were identical. Two separate decisions, however, would be issued.
At the request of the Chair, Ms Kathy Driver, Licensing Officer, briefly introduced the report for the application for the renewal of a Sexual Entertainment Venue Licence for Whites Gentleman’s Club, 32-38 Leman Street, London E1 8EW. Members and all interested parties noted the reports as read.
Mr Dadds began by asking if Members had read the supplemental agenda which included the summary of submissions made on behalf of the applicant, to which Members confirmed they had. He asked Members to keep an open mind and allow him the opportunity to persuade them to reconsider the previous decision made.
Mr Dadds highlighted the fact that Mr Yasin Baboo, Applicant, had been on anti-depressant medication since the reported incident in 2019, and this had been due to the trauma of the refusal of the application. He said that the serious allegations made had caused tremendous harm to the applicant.
It was noted that the renewal applications for 2020/2021 and 2021/2022 had not received any objections from residents, police or Councillors. Mr Dadds stated that the CCTV footage did not match what the undercover operatives had said as there were many discrepancies in their witness statements. The CCTV footage showed that there was no one in the VIP rooms at the times the undercover operatives had claimed to have been there.
He said that Council Officers on 29th August 2019 had forensic engineers check the CCTV footage and it was confirmed that it had not been tampered with. However, this information was not disclosed until March 2020 and therefore Members had not been informed of this at the time of the hearing in September 2019. They may therefore have heard assertions that the CCTV could haved been tampered with, and that the decision made may have been wrong in light of this information.
Mr Dadds said that there was no information about the undercover operatives who had apparently resigned from their jobs and were not cooperating with the Licensing Authority. Mr. Dadds said that the first release of the CCTV footage, totalling 17½ hours (but spanning a time period of about 2½ hours), showed that the undercover operatives did not do what they claimed to have done. He says that the Licensing Authority then trawled through that footage and used it to find other breaches. He said that using CCTV for a different purpose was unlawful and a breach of data protection. He said that further footage was provided, but it was redacted. It was said to have been provided for the purpose of showing that the operatives were being untruthful. Mr. Dadds asserted that there was no breach of condition 12 as it did not require the footage to be downloaded and provided; simply that it be made available for viewing.
Mr Dadds said that Mr Baboo was of good character and a responsible licensee and should be treated as such. He accepted that there were some breaches, but it didn’t mean that Mr Baboo was aware of this and approved it.
At this point Mr Dadd’s explained all the measures and further steps taken in ensuring that incidents of touching did not occur in the future. This included all staff and door staff having been retrained, additional staff employed to monitor CCTV, the VIP rooms and private booths.
He said that prior to May 2019 there had been no matters arising during renewal applications. It was noted that in the last 27 months, the premises had been trading for 12 months with no cause for concern and no complaints and this demonstrates that the premises can operate well.
Mr. Dadds accepted, when asked by Mr. Lewis, that condition 35 did not restrict touching to only that of a sexual nature. Mr. Dadds responded that Adrian Studd, a retired police officer, had viewed the CCTV footage and that it was his opinion that the condition related to touching of a sexual nature. He accepted that it was a breach but that it needed to be dealt with proportionately. In Mr. Studd’s opinion, the appropriate course of action was to retrain and discipline the performers.
In response to questions from Members, the following was noted;
- That it was accepted that touching was a breach of conditions.
- That additional steps had been put in place to prevent incidents of touching to occur in the future.
- There were 2 bar staff, 2 waitresses, 8 SIA door staff and 1 member of staff to monitor CCTV and the private rooms.
- SIA staff will inform management, the performer and also keep a register if there is any inappropriate touching.
- That random spot checks of the CCTV footage is undertaken and a member of staff is constantly monitoring the CCTV whilst premises is in operation.
- There were questions and concerns raised as to why the CCTV footage of the private booths were not provided.
- The explanation given by Mr. Baboo was that he was panicking following the allegations being made by the undercover operatives and that he spent hours reviewing the footage trying to locate the incidents. He thought he had downloaded the footage but in actual fact hadn’t and accepted this as his mistake.
- It was highlighted that the applicant was asked to download and provide the CCTV footage to officers as part of the conditions, and was not asked to look for the breaches.
- That systems were now in place for this not to happen again.
- Concerns were raised why till receipts were not provided, Mr. Dadds told the Committee that they had been provided and that condition 32, which is the condition that required production of receipts, related to the VIP rooms.
- That the undercover operatives had unexpectedly resigned.
- That the applicant accepted that he had made a mistake by not downloading the CCTV footage for the private booths.
The members adjourned the meeting for a short break at 8.30pm and reconvened at 8.38pm.
At the request of the Chair Mr Tom Lewis, explained that the letters sent to the applicant requesting CCTV footage did not detail the nature of the breaches of conditions and therefore the applicant would not have known what to search for in the CCTV footage. He explained that the applicant was written to on 13th June 2019 asking for CCTV footage of the rooms and booths but had no response. On 2nd July 2019 the applicant was written to again and it was only on 18th July 2019 that officers were able to view the CCTV footage with Mr Dadds. He stressed the length of time taken before being able to view the CCTV footage was unacceptable.
Mr. Lewis’s objection mainly referred to the failure to provide all of the CCTV sought and the failure to retain the footage from the booths, as well as the failure to provide receipts for payments for private dances. These failings gave him cause for concern about the applicant’s suitability to comply with the licence conditions and gave him no confidence that the applicant would co-operate fully in the event of future investigations.
Mr. Lewis also referred to the applicant’s failure to provide unredacted CCTV footage which, in his view, further highlighted the applicant’s unwillingness to co-operate with the authority. He accepted that the additional steps that Mr. Baboo said he had taken would provide some assistance but he remained of the opinion that in the event of further issues arising, the same problems would be experienced.
In response to a question from Mr Dadds, Mr Lewis confirmed that prior to these events he had confidence in the management of the premises and that since the decision of September 2019 he had not been made aware of any other matters. However, he also stated that prior to 2019 he had had no reason to doubt the ability of the management to adhere to the conditions of the licence.
In response to questions from Members, it was noted;
- It was accepted that condition 12 of the licence had been breached.
- That there had been no requests for CCTV images made in the last 12 months.
- The operatives were from an independent external company and were not council officers.
- It was confirmed that the missing footage related to the private booths, rather than the private rooms, and that the most serious allegations related to the private booths.
- That CCTV images provided confirmed touching was occurring.
Both parties made concluding remarks.
Decision
The Committee considered two applications by Whites Venues Ltd. to renew the SEV licence held in respect of Whites Gentleman’s Club, 32-38 Leman Street, London, E1 8EW (“the Premises”). The applicant previously held an SEV licence for the Premises which expired on 31st May 2019. The application to renew that licence came before the Committee on 3rd September 2019 and the application was refused pursuant to paragraph 12(3) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 on the basis that the applicant was unsuitable to hold a licence “for any other reason” due to failures in the management of the Premises, a lack of cooperation with the licensing authority, and concerns as to its ability to operate in accordance with its SEV licence.
The applicant has appealed the decision to refuse to renew the premises licence. The Committee understands that the effect of the appeal is that its decision does not take effect unless and until it is upheld by the magistrates’ court (and subject to any further right of appeal). The applicant therefore needed to submit renewal applications for both the 2020/21 year and the 2021/22 year. The first application was of course affected by the coronavirus pandemic hence both renewal applications coming before the Committee at the same time. Both applications were objected to by Tom Lewis, Licensing Manager for the Council.
The Committee understood that the appeal decision was due to be heard by the magistrates’ court on 4th and 5th November 2021. In light of that, the Committee canvassed the parties’ views on an adjournment of these applications pending the determination of that appeal. It appeared to the Committee that the determination on the appeal, particularly as the appeal was due to be heard very soon, might be of some assistance.
Mr. Dadds, solicitor for the applicant, opposed an adjournment for three reasons. Firstly, that the Committee should not proceed to a determination based on the prior decision. Secondly, there was a right of appeal from the magistrates’ court to the Crown Court. Finally, he hoped to persuade the Committee to grant the applications today, which would have a bearing on the appeal.
Mr. Lewis was expressed concern that there was a possibility that the appeal hearing date may change. If the appeal was certain to be heard in November then he would have no objection to an adjournment but, in light of that uncertainty, he too was of the view that the applications should be heard and determined as scheduled.
In light of the parties’ representations the Committee decided to proceed with the applications as scheduled. The parties acceded to a suggestion by the Legal Adviser to the Committee that both applications should be considered together since the issues raised and the submissions to be made were identical.
The main focus of the parties’ submissions related to the CCTV and the applicant’s failure to provide all of it to the licensing authority during the course of its investigation. There was no dispute that what had been provided was accurate and had not been tampered with. There was no dispute that the undercover operatives had apparently resigned from their jobs and were not cooperating with the licensing authority. Mr. Dadds said that the first release of the CCTV footage, totalling 17½ hours (but spanning a time period of about 2½ hours), showed that the undercover operatives did not do what they claimed to have done. He says that the licensing authority then trawled through that footage and used it to find other breaches. He says this is a breach of data protection.
When further footage was provided, it was redacted. It was said to have been provided for the purpose of showing that the operatives were being untruthful. Mr. Dadds asserted that there was no breach of condition 12 as it did not require the footage to be downloaded and provided; simply that it be made available for viewing.
Mr. Dadds accepted, when asked by Mr. Lewis, that condition 35 did not restrict touching to only that of a sexual nature. Mr. Dadds responded that Adrian Studd, a retired police officer, had viewed the CCTV footage and that it was his opinion that the condition related to touching of a sexual nature. He accepted that it was a breach but that it needed to be dealt with proportionately. In Mr. Studd’s opinion, the appropriate course of action was to retrain and discipline the performers.
Mr. Dadds and Mr. Baboo, the director of the applicant, told the Committee of further steps taken to ensure that incidents of touching did not occur in future, which included staff being in radio contact with one another and one person, and one person monitoring the CCTV screens.
The Committee asked about the missing CCTV footage relating to the private booths. The explanation given by Mr. Baboo was that he was panicking following the allegations being made by the undercover operatives and that he spent hours reviewing the footage trying to locate the incidents. He thought he had downloaded the footage.
Mr. Lewis’s objection referred to the failure to provide all of the CCTV sought and the failure to retain the footage from the booths, as well as the failure to provide receipts for payments for private dances. These failings gave him cause for concern about the applicant’s suitability to comply with the licence conditions and gave him no confidence that the applicant would co-operate fully in the event of future investigations.
Mr. Lewis’s representation also referred to the applicant’s failure to provide unredacted CCTV footage which, in his view, further highlighted the applicant’s unwillingness to co-operate with the authority. He accepted that the additional steps that Mr. Baboo said he had taken would provide some assistance but he remained of the opinion that in the event of further issues arising, the same problems would be experienced.
Mr. Lewis confirmed, when questioned by Mr. Dadds, that prior to these events he had confidence in the management of the Premises and that since the decision of September 2019 he had not been made aware of any other matters. However, he also stated that prior to 2019 he had had no reason to doubt the ability of the management to adhere to the conditions of the licence.
On further questioning from Members of the Committee Mr. Lewis confirmed that the missing footage related to the private booths, rather than the private rooms, and that the most serous allegations related to the private booths.
Whilst the thrust of both parties’ submissions focused on the previous history, the Committee’s function is not to revisit that decision or to consider whether any aspects of it are right or wrong. That, ultimately, is a matter for the magistrates’ court on appeal to consider. Regardless of the initial reports of the undercover operatives, those are not the basis of the objection before us. The objection was focused on the fact that the CCTV footage obtained showed breaches of the SEV licence that were entirely separate to those said to have been witnessed by the undercover operatives. Similarly, not all of the footage sought had been provided and so the Committee is not in a position to know whether the undercover operatives were truthful in respect of the allegations that had been made relating to the behaviour of performers in the private booths.
The Committee notes that there is before it very little new information. Part of this is of course due to the coronavirus pandemic. Mr. Dadds informed the Committee that following the hearing in September 2019 the applicant traded under the licence, as it was entitled to do, until the first lockdown arising from the coronavirus pandemic. Following that, the Premises were closed and only re-opened in July 2021. Whilst the Premises has therefore been able to trade for some time, the fact is that it has only operated for about twelve months out of the last twenty-four.
Mr. Dadds suggested that the Committee should have regard to the fact that no further concerns have been raised by any authority. Mr. Lewis confirmed to the Committee that he had not been made aware of any concerns but that the pandemic had affected the ability of Council staff to undertake any further monitoring. The Committee noted that the Premises would have been closed from March 2020 to July 2021. Whilst the Committee therefore notes that there have been no complaints raised since the decision of 3rd September 2019, that is of limited weight in the circumstances.
The real concern of the Committee is whether it can have confidence in the applicant and its management. It is accepted that there were breaches of the licence conditions. Mr. Dadds asserts that the Committee should have regard to the statement of Adrian Studd, who says that refusal would be disproportionate. However, it is for the Committee to determine what action, if any, ought to be taken.
The Committee noted that the applicant took over the Premises in January 2019 and that the problems came to the attention of the licensing authority just a few months later. The Committee considered it reasonable to Infer that the breach of the condition relating to touching was not isolated and that it was more likely than not to have happened on other nights.
The touching was a clear breach of condition 35 of the standard conditions. However, of most concern was the failure of the applicant to provide the CCTV footage for the private booths. This was said to have been a genuine mistake on Mr. Baboo’s part. However, the Committee found it a matter of grave concern that this footage could not be provided. The most serious breaches were said to have occurred in the private booths; the CCTV evidence, which Mr. Dadds told the Committee was “the best evidence”, was not available for those booths; this prevented the authority from investigating what took place there. Further, despite Mr. Dadds’ submissions to the contrary, the Committee considers that condition 12 did require the footage to be downloaded and supplied. In any event, the premises’ management had done that in respect of all the footage requested by the authority with the exception of the booths. The Committee notes Mr. Lewis’s submission that he asked for that footage twice. At best, this failure to retain and provide the CCTV gives the Committee doubt as to the confidence it can have in the applicant in future; at worst, if there was a deliberate deletion (which the Committee need not determine), then that would inevitably mean that the applicant was unsuitable to hold a licence.
Similarly, Mr. Lewis asked twice for receipts for certain receipts. Mr. Dadds told the Committee that they had been provided and that condition 32, which is the condition that required production of those receipts, related to the VIP rooms. The Committee did not consider that the condition was limited in that way.
The Committee’s unanimous decision is therefore to refuse to renew the application for an SEV licence for the period from 1st June 2020 to 31st May 2021, by reason of paragraph 12(3) of the Local Government (Miscellaneous Provisions) Act 1982, namely that the applicant was unsuitable to hold a licence “for any other reason”, namely due to its failure to operate the premises in accordance with the SEV licence conditions, to cooperate with the licensing authority in its investigation and supervision of the Premises, and to manage the Premises responsibly. The Committee had no confidence that the Premises would be managed properly and in accordance with the licence conditions in the future nor did it have any confidence in the applicant’s willingness and ability to co-operate with any future investigations. In making this decision the Committee had regard to the 1982 Act and to the Council’s SEV Licensing Policy.
Supporting documents:
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SEV Report - Whites - 2020-21, item 4.1
PDF 369 KB
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SEV Report Appendcices - Whites - 2020-21.docx, item 4.1
PDF 14 MB
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Whites - Supporting Doc 1, item 4.1
PDF 155 KB
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Whites - Supporting Doc 2, item 4.1
PDF 148 KB
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Whites - Supporting Doc 3, item 4.1
PDF 1 MB
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Whites - Supporting Doc 4, item 4.1
PDF 1 MB