IN THE READING MAGISTRATES’ COURT

Treehouse Bar Limited Appellant

-v-

Reading Borough Council Respondent

JUDGEMENT

  1. This is an Appeal by the Treehouse Bar Ltd (‘the Owners’) against the decision by the Licensing sub committee (‘the sub-committee’) of Reading Borough Council on 8th December 2015 to revoke the licence of ‘The Treehouse’, a bar and karaoke rooms located at 108 Friar Street, Reading, RG1 1NP (‘the bar’). The Appeal was heard on 10th, 13th and 14th June 2016 and the Court adjourned on 14th June to consider its decision to be handed down at a later date.
  1. In considering this Appeal, the Court was assisted by representations from Mr Pascall (of Counsel) and Ms Clover (also of Counsel) both orally and in writing in the form of skeleton arguments and written final submissions. In addition to written submissions by Counsel, the Court had before it a Respondent’s bundle (R) running to 298 pages and an Appellant’s bundle (A) consisting of 87 pages. In addition, the Court admitted into evidence a further written statement by PC Wheeler of Thames Valley Police (TVP) dated 27th May 2016 (p255A-G R) and written testimonials submitted in support of the one of the joint Owners of the bar, Nancy Zhang.
  1. The Court also considered witness statements and heard cross-examination from the following witnesses (in order that they were heard) –
  1. For the Appellant –
  • Steven Nyazika (Current Manager of bar Door Staff – from September 2015)
  • Nancy Zhang (Former Premises License Holder & co-Owner)
  • Simon Bayfield (Current Designated Premises Supervisor – from October 2015)
  • Frank Fender (Licensing Consultant)
  • Yongsong Zhao (“Brian”) (Director Treehouse Bar / husband to Nancy Zhang)
  • Shashi Gurung (Bar Manager – from August 2015)
  1. For the Respondent –
  • Peter Narancic (Senior Licensing & Enforcement Officer, Reading Borough Council - presenting Council documentary evidence only)
  • PC Simon Wheeler (Police Officer working for Thames Valley Police – TVP)
  • Richard French (Licensing Enforcement Officer, Reading Borough Council)
  • Doug Fogarty (Security Supervisor, 4D Solutions Ltd)
  • Sarah Saunders (Director, 4D Solutions Ltd)

THE BACKGROUND TO THE APPEAL

[page numbers refer to Respondent bundle (R) or Appellant bundle (A)]

  1. On 15th October 2015 PC Simon Wheeler on behalf of TVP submitted a review application under Section 52 of the Licensing Act 2003. The issues of concern were set out in that application [R2–27] together with a number of supporting appendices. Having considered the matter, the sub-committee resolved to revoke the premises licence for the following reasons [R192–193].
  • Numerous breaches of conditions;
  • The undermining of the Licensing Objectives;
  • The unwillingness of Nancy Zhang to exercise appropriate responsibility in the operation of the premises;
  • The delays in replacing a Designated Premises Supervisor (DPS) who was ‘clearly out of his depth’ and also in the removal of the (then) premises security firm (4D Solutions Ltd);
  • The presence on the premises of an underage boy;
  • The continued use of ‘irresponsible’ promoters;
  • That members of the public had sustained injuries from a broken bottle whilst within the premises;
  • Evidence of class A drug use within the premises and the resistance to the use of passive ‘drug dogs’ on the premises, and
  • Evidence of numerous violent instances on or immediately outside the premises and incidents close by, but linked to the premises as demonstrated to the Sub-Committee by way of CCTV footage of incidents on 26th July and 4th October 2015.
  1. The police application sought revocation of the licence, but in the event that the sub-committee did not think that it was appropriate, the police sought the removal of the DPS (James Spencer until October 2015) and a period of suspension to allow for improvements to be made. Up to September 2015 the company providing ‘door supervisors’ to the club was 4D Solutions Ltd. As noted above, after considering the matter the sub-committee resolved to revoke the licence.
  1. The appellant appealed the decision of the sub-committee.
  1. THE LEGAL BACKGROUND
  1. Both sides have helpfully confirmed the correct legal tests and authorities to be applied by the Court as part of this Appeal, contained in the following statute, Statutory Guidance and authorities: –

a)The Licensing Act 2003 (‘the Act’);

b)Secretary of State Section Revised Statutory Guidance issued under the above Act in March 2015 (‘S182Guidance’) and in particular the emphasis on the Licensing Objectives in para 1.3 of that Guidance;

c)R (Hope and Glory Public House Ltd v City of Westminster Magistrates Court) [2009] EWHC 1996 (Admin) as confirmed in

d)Hope and Glory Public House Ltd (R on the application of) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ31.

e)R (oao) Townlink Ltd v Thames Magistrates’ Court [2011] EWHC 898 (Admin);

f)Noor Mohammed Khan (Claimant) v Coventry Magistrates’ Court & Coventry City Council [2011] EWCA Civ 751;

g)R v Secretary of State for Health ex parte Eastside Cheese Co Court of Appeal, Civil Division [1999] All ER(D) 710.

  1. The Court was also mindful of the submission made by the Appellant in skeleton argument (and not contested by the Respondent) that a key factor of the licensing regime is that it is remedial in nature and not punitive. The purpose of the legislation is to secure compliance with the licensing objectives and revocation is a step of last resort which should be used in situations where remediation is not forthcoming.

THE LEGAL TESTS

  1. Having established the legal framework for this Appeal, the Court went on to consider what tests should be applied arising from the statute and authorities listed above. Once again, we were greatly assisted by Counsel for the Respondent and Appellant as follow –
  1. Counsel for the Appellant set out the cumulative effect of the above statute and case law thus (paragraph 14 of the Appellant’s skeleton argument refers) –

a)‘The appeal court should approach the decision making exercise afresh, in a rehearing, or ‘hearing de novo’.

b)New Evidence is admissible; whether that evidence was potentially available at the time of the sub-committee’s decision, or whether it has arisen since.

c)Evidence of the promotion of the Licensing objectives since the sub-committee’s decision will be relevant and may, in and of itself, result in a conclusion that is different from that which the sub-committee reached. Such a different conclusion based on the sub-committee’s decision, may still result in the sub-committee decision being “wrong”, at the present time, and therefore susceptible to a successful appeal.

d)The relevant point in time for the consideration of the evidence, and the correctness or otherwise of the sub-committee’s decision, is the date of the appeal, not the date of the original committee decision.

e)The Magistrates’ Court should, give consideration to the decision reached by the sub-committee and not depart from it lightly, but the weight given to that decision is itself a matter of judgement for the Magistrates’ Court, and will depend upon the fullness, clarity and cogency of the reasons the sub-committee gave, and any changes in evidence since that time.

f)The burden of beginning, and of persuading the Court that the sub-committee’s decision was wrong, on the balance of probabilities, is with the Appellant.’

  1. Counsel for the Respondent agreed with the description of the approach that the Court should adopt (set out in paragraphs 11 to 14 of the Appellant’s skeleton argument) and emphasised that although this was a re-hearing ‘de novo’, ‘...the ultimate question is whether or not the Sub-Committee’s decision was wrong in the light of all the evidence and submissions to be considered at the appeal and having had regard and given appropriate weight to the Sub-Committee’s reasons for revocation.’
  1. The Court also kept at the forefront of its mind, the promotion of the licensing objectives as set out in section 4(2) of the Act –

a)The prevention of crime and disorder;

b)Public safety;

c)The prevention of public nuisance; and

d)The protection of children from harm,

  1. as well as the content of the S182 Guidance. In addition, the Court’s attention was drawn to the Respondent’s Local Licensing Policy Statement.

THE ISSUES

  1. The issues in at the heart of this Appeal were debated thoroughly, and sometimes robustly, in the course of the 3 days of the hearing. They can be summarised below –
  1. For the Respondent –

a)That the decision of the sub-committee was robust and based upon significant and troubling evidence of the mismanagement of the Bar, as summarised in evidence presented on 8th December 2015 and the formal, written decision of the sub-committee;

b)That nothing substantive had occurred since the sub-committee’s decision of 8th December 2015 (a little over 6 months previously) to warrant a change in that original decision or, if it had, it was due to a drop in ‘footfall’ in to the bar and little else;

c)The Owners had failed to pay the annual licence fee and despite an instruction to cease trading issued on 18th December 2015, the bar continued to do so; and

d)That there was no guarantee that the ‘very serious matters’, that the sub-committee felt justified in revocation of the licence, would not occur again.

  1. For the Appellant –

a)That significant changes had begun to be introduced and effected before the 8th December 2015, namely –

  • The co-owner (and previous PLH) Nancy Zhang had educated herself in licensing, and passed the Personal Licence course in June 2015
  • That Nancy Zhang had also taken a step backwards in the business and invited some more support and help – in the form of her experienced businessman husband Yongsong Zhao (‘Brian’)
  • The previous DPS (James Spencer) had been replaced as had other staff that were not performing well.
  • A new CCTV system had been introduced in June 2015 to the specifications recommended.
  • ‘ClubScan’ equipment to verify people coming in had been introduced.
  • The original door security company and its manager had both been replaced.
  • The bar manager was replaced with Shashi Gurung.
  • The DPS and General Manager had been changed to Simon Bayfield.
  • Management introduced a new range of policies and protocols which have been demonstrated to be working.

b)That there had been a trajectory of improvement which was substantive and not transitory;

c)That the improvements introduced had been undertaken at considerable expense and effect which demonstrated commitment to improvement;

d)That the bar was actively trying to attract a different profile of customer and to prohibit those customers who had caused problems in the past; and

e)That the elimination of reported incidents at the bar was not down to numbers, but ‘lessons learnt’ as well as more robust systems of management, training and door / bar security.

FINDINGS

  1. There appears to be no disagreement between the parties that the bar was being mismanaged in 2015 – either through a naivety or lack of experience or both. Notwithstanding the totality of the evidence that has been submitted to this Appeal (and which we will deal with later), on 8th December 2015 the sub-committee was faced with a litany of incidents R [10–18] some major and some less so – which we feel justifiably gave rise to concern in the minds of the enforcement authorities at that time.
  1. The Respondent’s enforcement officer (Richard French) states that these incidents were not contested by the Appellant’s representatives at the sub-committee hearing on 8th December 2015 R [258 para 3]. The original Premises Licence Holder (Nancy Zhang) openly admits to her lack of experience in her written submission to the sub-committee R [126 para 2] as well as a ‘poor grasp of spoken English.’
  1. The Court concludes, therefore, that the decision of the sub-committee on 8th December 2015 was not, on balance, “wrong” at that time on the basis of the evidence presented to us.
  1. However, as indicated above, whilst we should be mindful of the decision of the sub-committee as at 8th December 2015, we should judge according to the situation as at the time of the hearing of this Appeal.
  1. We note that in submissions to the Court, both parties have presented further argument which, whilst accepting that the bar was poorly run (for whatever reason), have focused, in part, to a position of attributing blame. The Respondent sought to present a pattern of behaviour on the part of the owner, in the form of interference with door security, poor management & systems etc, the potential for which remains. The Appellant owners were keen to lay the blame for the shortcomings of the business at the door of others in particular claiming to have been let down by the previous PLH and the previous door security firm (4D Solutions Ltd). The Appellant also asserted a degree of ‘bad faith’ on the part of the enforcement agencies (the police and local authority officers) who, they allege in submissions, may be partisan and / or determined not to recognise improvements for what they are.
  1. Having heard lengthy evidence from Nancy Zhang, PC Wheeler, Doug Fogarty and Sarah Saunders, the Court is not persuaded that fault (where it exists) can be allocated solely to one party. It could well be argued that the Owners are bound to blame the previous door security firm (4D Solutions Ltd) as the major cause for the failings and incidents that led to the concerns reported to the sub-committee. Likewise, it can be argued that the security firm are bound to submit that they could have done their job more effectively had it not been for the obstruction of the Owners, promoters and an opaque management structure as it protects their reputation and that of their staff. Likewise, it may suit the Owners of the bar to claim that they ended the contract as a result of these failings and for the 4D Solutions Ltd to claim conversely that in fact in was they who did so as they had reached the ‘end of the road’ with the Owners of the bar. There is simply no conclusive corroboration either way and all the Court knows for sure is that the partnership ended (with apparent relief on both sides) in September 2015, some nine months before this Appeal.
  1. What is not in doubt, of course, is that a major responsibility for the smooth running of the bar rests with the Premises Licence Holder.
  1. If we then turn to the situation with door security since 8th December 2015, the Court was assisted with the evidence from Steven Nyazika the current security manager at the bar from Gateway Security Services who in our opinion answered questions about the current security arrangements cogently and persuasively. Steven Nyazika took on this role in September 2015.
  1. The Appellants also commissioned a consultant (Frank Fender from FJF Licensing Solutions) to visit the premises on 3 occasions in March and April 2016. Notwithstanding that this is a report commissioned by and for the Owners in support of this Appeal, the Court found this evidence detailed and compelling in presenting a snapshot picture of how the bar is operated and run.
  1. In addition, Frank Fender’s written and verbal evidence was not significantly challenged by the Respondent, save for the observation that the visits occurred ‘only’ on 3 occasions. Frank Fender himself came with impressive credentials in terms of his Licensing enforcement background and the Court noted with some interest his observations about the management of customer behaviour to which we will return below.
  1. If we now broaden our findings beyond door security and general management we come to the Designated Premises Supervisor appointed in October 2015, Simon Bayfield. The Court found Simon Bayfield a credible and persuasive witness who clearly outlined his ambitions for the bar and his general critical path to re-establishing its reputation.
  1. The Court is of course aware of the logic that any manager is ultimately answerable and accountable to the Owner/s, but Simon Bayfield did not strike us as a man who would tolerate interference of the type inferred by the Respondent, nor did he appear to us to be ‘unconcerned’ with the failure to pay the licence fee as submitted by the Licensing Officer, Richard French (which we deal with below). We also note one of the few concessions made by PC Wheeler in his evidence that ‘…I agree that Simon Bayfield is a good DPS and has communicated well with us and performed very well since his employment has begun.’ R[255c].
  1. Simon Bayfield described his current and future ‘vision’ for the bar and its customers – firstly ‘breaking down’ the old profile and creating a new one. It seems to the Court that a ‘plan’ (of whatever description or sophistication) to change the clientele profile of a bar with a poor public reputation is both sensible and logical and probably to be welcomed.
  1. Taking into account the above (together with the equipment purchases referenced by the Appellant in their submission), therefore, the Court concludes that substantial and substantive efforts have been made to improve the security and management of the bar and that these commencement of these changes pre-dated the sub-committee hearing.
  1. The Court further concludes that these improvements have been progressive (albeit at a pace that may not have satisfied the enforcement authorities at the time) and we particularly note the letters of Richard French dated 4th June 2015 and 14th August 2015 where an initial list of 11 items of concern is reduced to 5. We make no attempt here to weigh the seriousness of these remaining issues, save to say that it cannot be persuasively argued that progress in rectifying the concerns initially identified formally ‘on the record’ on 4th June 2015 was not being made.
  1. The Respondent’s linked concern here is that the changes – such as they were – either did not go far enough (Nancy Zhang is still a co-owner and will likely as not continue to interfere) and /or that they rely upon the presence of a security company and / or a DPS who could leave or be replaced. The Respondent points to paragraphs 11.21 and 11.22 of the S182 Guidance which, in summary, point out that whilst the removal of a poor performing DPS may be sufficient, if it emerges that failings are due to poor company practice or policy, the removal of a DPS may be an ‘inadequate response to the problems presented.’ (11.22).
  1. In considering this point, the Court has weighed several matters which arise from the lengthy evidence and cross-examination of Nancy Zhang. Firstly, Nancy Zhang has admitted in some detail her own naivety and lack of experience, thereby demonstrating awareness. Secondly, she gave evidence to the effect that she was prepared to follow the advice of people that she employs in terms of putting matters right. Finally, there have been some efforts to introduce in to the senior management of the bar other members of the family who have some, albeit different, licensing experience – her husband, Yongsong Zhao. This, combined with the introduction of a new, experienced door supervisor company and experienced DPS and bar management staff shows, at least on the face of it, a determination to learn from the lessons of the past and to drive forward improvements
  1. Of course, the Court accepts that there is no guarantee that Nancy Zhang would not interfere with the day to day running of the bar in such a way as to cause a dysfunction, but on balance we feel that this is unlikely. If such interference did happen in the past (and we make no finding in this regard as the evidence is inconclusive), we are satisfied that on balance it is not happening at the moment and has not for at least 6 months minimum.
  1. The next issue we considered was one of customer numbers – that is to say that the reason why there have been no reported incidents at the bar for over 6 months is because of reduced footfall. Much time was spent during the Appeal arguing this point (and the alternative proposition – that it was due to better management). The Court noted the view of the consultant Frank Fender who expressed a view that good order in a pub or club was a virtue of good door management; although there was a correlation between numbers and likely disorder.
  1. Frank Fender gave evidence to the effect that incidents occur or get out of hand because of how they are managed. He went on to say that he had known venues with a capacity of 50 having trouble – either because of poor management or poor training. He added that all venues have a share of incidents; if you have good door staff it will breed better behaviour in customers coming in and out. During his 3 observations, Frank Fender found that the door team worked very well. Frank Fender concluded by saying that if this was in place, numbers didn’t matter. The Court accepts this submission and concludes that there must logically be a correlating effect between number of door staff and customers, but also training, door staff attitude and customer care skills – in short, a balanced package is needed for the effective management of a licensed premises.
  1. We further conclude therefore that the lack of incidents at the bar in the last 6 months cannot be solely due to reduced numbers, albeit that it may be a contributing factor and the evidence from Frank Fender and Simon Bayfield support this conclusion. The Court accepts the Appellant’s submission that changes introduced in systems, bar management, door staff provider, training and customer profile were and remain substantive and supported through the written and verbal evidence adduced during the Appeal as summarised above.
  1. However, the Court was also mindful of the role and weight to be given to submissions by the police as set out in paragraph 9.12 of the S182 Guidance as follows –

“Representations from the police