Agenda item
Licensing Act 2003 Application for a variation of a Premises Licence for (Studio Spaces Ltd / E1), 110 Pennington Street, London E1W 2BB
Minutes:
At the request of the Chair, Mr Mohshin Ali, Licensing Officer, introduced the report which detailed the application for variation for a premises licence for Studio Spaces Ltd / E1, 110 Pennington Street, London E1W 2BB. It was noted that an objection had been received on behalf of the Licensing Authority, who had raised concerns relating to the crime and disorder objective and public safety objective.
The Legal Adviser to the Sub-Committee stated that he had been told before the hearing that the parties had had the opportunity to discuss how best to manage the hearing, given the numbers of people who had made representations and wished to speak. Mr. Charalambides would speak for about fifteen minutes on behalf of his client and then for about the same time for those making representations and had attended and indicated a wish to speak. Mr. Grant, on behalf of the Licensing Authority, would address the Sub-Committee for about fifteen minutes. He confirmed his assent and all those present physically and virtually were given the opportunity to respond or object if the Legal Adviser’s understanding of the position was incorrect. None did so and the Sub-Committee agreed to proceed as suggested.
The Sub-Committee was asked to consider if the condition in Annex 2, condition 1 should be removed from the premises licence.
At the request of the Chair, Mr Leo Charalambides, Counsel for the Applicant, addressed the Sub-Committee. He referred members to his submission in supplemental agenda 2 and stated that the condition “No nudity or semi nudity permitted” should be removed from the licence, as the condition was vague and unenforceable. Mr Charalambides argued this was a historical imposition on the licence and said that under the current licensing legislation this would not be a condition that would be considered or imposed.
Mr Charalambides referred to Tower Hamlets being a diverse and welcoming borough for various communities and said the ‘queer’ community had a long- standing connection with the borough, with many other venues offering a haven for the queer and LGBTQ+ communities. Mr Charalambides referred to Backstreet and Crossbreed as clubs which operated in Tower Hamlets which were facing an uncertain future.
Mr Charalambides then referred to the Public Sector Equality Duty (PSED) and said the licensing policy had not been updated in accordance with this duty and said the Licensing Authority had not undertaken an equalities impact assessment (EIA). Mr Charalambides said the Applicant had provided a draft EIA which members could adopt if they chose.
Referring to the allegation arising from the incident of 12th February 2022, Mr Charalambides said it was clear this was a one-off incident which had not led to a prosecution by the Police. Mr Charalambides pointed out the Police had not objected to the application and said all events were risk assessed before being held at the premises. He said the information was shared with the police and the licensing authority. The authorities were fully aware of the types of events that were held at the premises.
Mr Charalambides continued stating that if the condition remained or was modified it would be unworkable. He said the authority could not be the gatekeeper as to how consenting adults should dress at queer events. Why was it acceptable for a male to display their nipples and not a woman? And what of those who were non-binary or had transitioned to the opposite sex?
The Sub-Committee then heard from Mr Gary Grant, Counsel for the Licensing Authority. Mr Grant referred members to his submission in supplemental agenda 3, and said that the event held on the 12th February by external promoters ‘Torture Garden’ had given rise to concerns that the premises was in breach of the no nudity condition. He said the Licensing Authority had written to the Premises and the Premise Licence Holder (PHL), Mr Yuval Hen in relation to this event. He said the CCTV pictures showed widespread nudity and sexual activity. He said it was evident these breaches had been occurring for some time. He said removing the condition would amount to rewarding the Premises Licence holder, that it was acceptable not to comply with the conditions on the licence and would set a precedent for other PHL to follow.
Mr Grant accepted the term semi-nudity was vague. However, he said the condition should be modified in line with the Sexual Entertainment Venue (SEV) definition. He said the Local Authority had concerns the Premises Licence Holder had not applied for a SEV Licence, which perhaps would be relevant, as under the Licensing Act 2003, adult entertainment including sexual entertainment was permitted under ‘occasional use’, up to 11 times a year.
Referring to the PSED Mr Grant concurred this was engaged and said the Sub-Committee needed to comply with that. Mr Grant reminded members of the ‘Brown Principles’ and the freedom of expression right under the European Convention on Human Rights and said his submission set out the principles however there was no absolute right. He said it was important for the members to grapple with this before making a decision.
The Sub-Committee then heard from a selection of the 203 supporters who had made representations in support of the Applicant. The Sub-Committee heard from Farima Toosi, Aimee Ellenor, James Lancley, Anis Azman, Peace Williams-Ojomu, Anastassiia Fedorova (Supporters) and Karl Verboten, a supporter and promoter of kink events held at the premises.
The Supporters voiced their support of the premises and events held at the premises. They praised the organisation and safety procedures event organisers followed, to ensure they all had an enjoyable time. Many said they felt it was a safe space for them to express their sexuality without unwanted sexual attention or harassment. They said because Klub Verboten was a membership only organisation which vetted all its members, they were reassured of their safety. They urged the Sub-Committee to remove the condition on the licence and allow a safe space of their community to come together and enjoy themselves.
In response to questions the following was noted:
- Mr Charalambides said it was immaterial if the Applicant was aware of the condition on his licence, prior to the Licensing Authority issuing their warning letter. He said the condition was an historical condition that would not be appropriate on a licence today. Mr Charalambides said the condition related to lap-dancing performances and not to adult entertainment events held for consenting adults.
- Mr Yuval Hen, PHL added he was not aware he had breached the condition on the licence. He said every event is risk assessed and the risk assessment is provided to the police and licensing authority. He said the Responsible Authorities had never raised any concerns prior to the alleged incident of 12th February 2022.
- Mr Charalambides stated that under the PSED, the protected characteristics were engaged, and the Sub-Committee should be mindful of this. He said the Licensing Act 2003 allowed for adult entertainment and such it was unlawful to impose censorship on how people should dress. He said the Local Government (Miscellaneous Provisions) Act 1982 was concerned with controlling lap-dancing and protecting the dancer and not other forms of adult entertainment.
- The condition ‘No Nudity/semi nudity’ was not enforceable as the Local Authority’s Licensing policy did not make reference to this.
- The Applicant confirmed they had not applied for an SEV licence. Mr Charalambides said his client did not need one. He said each example under the SEV policy related to lap-dancing and striptease and as such an SEV licence was not required.
- Mr Lewis confirmed there had been no complaints received against the premises other than the alleged assault incident that had been bought to their attention by the police.
- Mr Lewis confirmed he had considered the PSED duty but had not a written record. He said the Licensing Authority risk assessed each case and had made a representation on the grounds of safeguarding.
Concluding remarks were made by all parties.
The Licensing Objectives
In considering the application, Members were required to consider the same in accordance with the Licensing Act 2003 (as amended), the Licensing Objectives, the Home Office Guidance, and the Council’s Statement of Licensing Policy and in particular to have regard to the promotion of the four licencing objectives:
· The Prevention of Crime and Disorder;
· Public Safety;
· The Prevention of Public Nuisance; and
· The Protection of Children from Harm.
Consideration
The Sub-Committee considered an application by Studio Spaces Ltd. to vary the premises licence held in respect of Studio Space/E1, 110 Pennington Street, London, E1W 2BB (“the Premises”). The variation sought was the removal of a condition which stated, “No nudity or semi nudity permitted.”
The application attracted some 200 representations in support. There was one representation against the application, from the Licensing Authority in its capacity as responsible authority, which sought to persuade the Sub-Committee to uphold the condition or modify it so as to clarify precisely what was meant by nudity.
The Sub-Committee heard from Mr. Charalambides, who spoke on behalf of the applicant and, helpfully, those of the supporters who had indicated a wish to address the Sub-Committee. He explained the use of the venue for kink/fetish nights and which catered for the “queer” community, which he used as a convenient umbrella term for various groups (and any reference to “queer” in this decision is used in like manner). These events, which had been held here and at various other venues over a long period of time, were fully risk-assessed, notified to the police, and took place with police approval.
The Sexual Entertainment Venue (SEV) policy operated by Tower Hamlets was concerned with lap-dancing venues and the like rather than venues such as this. The applicant was unclear why, after many years of support, the attitude of the Council had suddenly changed. In respect of the allegation of 12th February 2022, both the Council and the police had viewed the footage. There had been no criminal proceedings, the authority did not seek to review the premises licence as a consequence of the alleged breaches, and there was no representation from the police on the basis of the crime and disorder licensing objective.
The Licensing Act 2003 was not concerned with adult entertainment, save for ensuring the protection of children from harm. This was not engaged and the promotors operated age and membership policies to ensure this.
Mr. Charalambides asserted that the authority was in breach of the public sector equality duty (PSED) under the Equality Act 2010 by failing to have due regard to that when deciding to make a representation. The decision would impact on groups with protected characteristics, especially sex, sexual orientation and gender reassignment. His client had, however, produced an equality impact assessment (EQIA) which the Sub-Committee could take into account when complying with the PSED. He told the Sub-Committee that its Statement of Licensing Policy failed to set out how the PSED had been applied when the policy was made and that the Policy had not been updated in that regard in twelve years. He urged that this be reviewed as a matter of urgency.
Mr. Charalambides submitted that the Licensing Authority’s position, in seeking to uphold or modify the condition, effectively told consenting adults what they could or could not wear and how they could or could not behave. It raised the question of how the modified condition could properly apply to those who identified as non-binary. Why should a man be permitted to be bare-chested, but not a woman? He urged the Sub-Committee to remove the condition and invited the Sub-Committee to impose a condition that all events be risk-assessed and that there be a safeguarding policy in place by both promoters and the Premises.
Mr. Grant, on behalf of the Licensing Authority, suggested that the Sub-Committee modify the condition to bring it more in line with the definition of nudity as it applied to SEVs. He had added a further clause that meant a man who self-identified as a woman would be classed as such, and vice versa.
He told the Sub-Committee that the Licensing Authority took no view on the morality of kink or fetish nights. Their concern was purely one of safeguarding and the importance of the venue and these events being regulated.
The stills from the event of 12th February 2022 showed widespread nudity and sexual activity. This had been occurring for some time, on the licence holder’s admission and it was, in his view, a breach. He asserted that to remove the condition would be tantamount to rewarding the licence holder and that this could lead to other operators being minded to breach conditions that they did not wish to comply with.
Mr. Grant accepted that the PSED was engaged and that the Sub-Committee needed to comply with that. He reminded the Sub-Committee of the principles to be applied and that Members needed to be satisfied that they had sufficient information about the effect of keeping or modifying the condition on those with protected characteristics. He commented that the Sub-Committee could, if it saw fit, adjourn in order to obtain further information to allow it to properly considered the PSED. Mr. Grant reminded the Sub-Committee that the PSED was not a duty to achieve any particular outcome and that to the extent that the applicant relied upon Article 10 of the European Convention on Human Rights, that too was a qualified rather than absolute right.
The Sub-Committee heard briefly from some of those who had made representations in support of the application, including Karl Verboten. They expanded briefly upon their representations and emphasised the safety of the venue, the importance the promotors placed upon safeguarding, and that they considered it to be important to be able to dress and express themselves freely in these venues.
During questions, the Sub-Committee was told that the applicant’s understanding of the condition was that it had been imposed by policy to limit performances of lap-dancing and similar. They had been told this by the police. Mr. Charalambides referred to the relevant section of that old policy as being headed “Striptease.” It was a vague condition and was not intended to control patrons. On that basis, there was in fact no breach of condition and the responsible authorities were aware of the activities that went on and had expressed no concerns. Mr. Charalambides stated that there was also no breach because the condition was unclear and therefore unenforceable.
Mr. Charalambides further explained that the Licensing Act 2003 did not contain a definition of nudity because it was not concerned with that and that the regulation of SEVs was concerned with regulating the power dynamic between operators and performers. In clubs such as this, or Crossbreed, or Backstreet, the 2003 Act had no role to play in regulating and controlling those activities.
The Sub-Committee also sought information about how these events were promoted and advertised. In essence, this was via social media to vetted members, in advance of any event.
Mr. Lewis confirmed to the Sub-Committee that there had been no complaints to the Council save for that reported to the police in respect of 12th February 2022.
Whilst the Sub-Committee had before it a considerable amount of information and had benefitted from the oral submissions of the parties, the issue for determination was ultimately a simple one; if the condition were to be removed, would that be likely to adversely impact upon the licensing objectives, in this case the prevention of crime and disorder, and public safety? The Sub-Committee understood that were it not for the Licensing Authority’s representation, this application would not have been before it.
The Sub-Committee had no evidence at all that the removal of the condition would adversely impact upon any of the licensing objectives. The Licensing Authority’s representation referred to just one allegation; by the time of the hearing the Authority had expressly stated it would not ask the Sub-Committee to place any weight on that. There were no representations from any other responsible authority. The police, who the Statutory Guidance refers to as being the main source of information on crime and disorder (paragraph 9.12), had not made a representation. There were no residents making representations against the application. The Sub-Committee would have expected that events at the Premises which gave rise to any problems would have been reported and that this would be reflected in any representations. That the police were aware of these events and raised no concerns also gave an indication that the crime and disorder objective would not be undermined.
With respect to the alleged breach, the Sub-Committee was advised that its function was not to determine guilt or innocence. In any event, given the various issues raised, all that could properly be said is that there was some nudity to a degree. However, the Sub-Committee noted that this was not a review application and that the focus needed to be forward-looking. Even if there had been a breach of that condition, that alone would not justify the condition remaining, unless it could be shown that to do otherwise would undermine the licensing objectives. The Licensing Authority sought to rely upon the alleged breaches of the condition as evidence that the licensing objective of the prevention of crime and disorder would be undermined. However, if the condition were removed, logically that aspect of concern falls away.
The statements of the supporters also provided evidence as to the way that the Premises had been conducted in their experiences. Some referred to having felt unsafe or had been harassed or sexually assaulted or inappropriately touched in “mainstream” venues. That they did not feel unsafe in this venue or at events such as these was a strong indication that the licensing objectives would not be undermined by granting the application.
Given the complete absence of evidence that the licensing objectives would be adversely impacted by the removal of the condition, the Sub-Committee considered that the only appropriate and proportionate course of action open to it was to remove the condition entirely. It follows that the Sub-Committee also did not consider it appropriate and proportionate to impose the modified condition as suggested by the Licensing Authority.
The Sub-Committee was, however, minded to impose a condition with respect to welfare policies, as suggested by Mr. Charalambides. The Sub-Committee noted that there was a condition requiring risk assessments. For the avoidance of doubt, this will apply equally to queer/fetish/kink events and a condition added accordingly.
Finally, the Sub-Committee did have concern, especially in light of the publicity that this application had attracted, that there was a risk of increased numbers attending the Premises and which could adversely impact upon the licensing objectives. Given that the applicant stated that these events were held and open only to members of clubs or schemes operated by the various promotors, the Sub-Committee considered that imposing a condition to this effect was appropriate and proportionate for the promotion of the licensing objectives.
In light of this decision, the Sub-Committee considers that it can address the PSED issue quite briefly. The Sub-Committee specifically considered the applicant’s EQIA and, in the absence of any other relevant information from the Licensing Authority, felt constrained to adopt the applicant’s EQIA. The Sub-Committee noted that the nature of the events meant that there was a greater impact on certain groups with protected characteristics. The Sub-Committee noted that although the events at the Premises tended to cater to the queer community, there were disparate groups of people attending these events, some of whom shared one protected characteristics, others who shared another, and some who had none at all. The Sub-Committee was informed that these events were inclusive and welcomed diversity and were open to all; being of the queer community was not a prerequisite for attendance or entry. Given the comments made by some of the supporters as to harassment and discrimination that they had faced in mainstream venues, and how safe they felt at events such as Klub Verboten, the Sub-Committee accepted that these events were of considerable importance to the queer community.
For completeness, however, the Sub-Committee was aware that the PSED did not require it to achieve a particular result and the above was in no way determinative of the issue. Whilst the Sub-Committee had had due regard to the PSED, the removal of the condition was simply because of the approach required to be taken under the Licensing Act 2003.
Accordingly, the Sub Committee unanimously;
RESOLVED
That the application for the variation of the premises licence for (Studio Spaces Limited/E1) 110 Pennington Street, London E1W 2BB be GRANTED with conditions.
Conditions
1. The premises licence holder shall implement, maintain and comply with a wellbeing and safeguarding policy for queer, kink and fetish events. The premises licence holder shall ensure that any external promotor putting on queer/fetish/kink events is aware of and complies with this policy. A copy of the policy will be made available to the Licensing Authority and Police upon written request. Any updates to the policy shall be communicated to the Local Authority and Police within seven days of such updates.
2. Any queer/kink/fetish events being promoted at the premises shall operate a members-only policy by the promoter.
3. Condition 24 of Annex 2 shall apply to any queer/fetish/kink events taking place on the premises
Supporting documents:
- PenningtonSt110.Vary2022, item 3.2 PDF 508 KB
- PenningtonSt110.Vary2022.A1-15.RED_pdfa, item 3.2 PDF 4 MB
- PenningtonSt110.Vary2022.A16.RED_pdfa, item 3.2 PDF 199 KB
- PenningtonSt110.Vary2022.A16.1-203, item 3.2 PDF 10 MB
- PenningtonSt110.Vary2022.App2.RED_pdfa, item 3.2 PDF 377 KB
- E1Studio Space 18.03.22, item 3.2 PDF 190 KB
- E1 Submissions 09.06.22, item 3.2 PDF 102 KB
- E1 Safeguarding 21.07.22, item 3.2 PDF 116 KB
- E1 EQIA Draft 22.07.22, item 3.2 PDF 216 KB
- STUDIO SPACES E1 - Licensing Authority Submissions (22.7.22), item 3.2 PDF 293 KB
- Journal of Licensing, item 3.2 PDF 3 MB