Summary review, crime and disorder (2)

The London Borough of Croydon recently defeated an appeal by a nightclub over reduced operating hours. Gary Grant explains why.

Croydon Council, with the support of the Metropolitan Police, have won the heavily-contested appeal launched by the South London nightclub, Club 791, against the significant cut-back of its operating hours designed to ensure that it could no longer operate as a nightclub.

The appeal was pursued against a background of well-publicised accusations levelled against Croydon Police of racial-profiling involving “black-oriented” nightclubs in the London Borough of Croydon (not least in the widely-reported review proceedings involving Dice Bar in March 2016).

The appeal also raised interesting legal questions on what “crime and disorder” could, or should, be taken into account in summary review proceedings.

The two summary review applications

In this unusual case there were two summary review applications instigated by Croydon Police against the Thornton Heath based club within the space of just five months. The first followed a series of violent incidents associated with the club’s customers, including the “trigger-incident” when a man was stabbed in the neck inside the premises in October 2015. That summary review was concluded by way of a set of conditions agreed between the police and the operator, and subsequently endorsed by Croydon Council’s licensing sub-committee. The conditions included increased door supervision, a last entry time, and the use of metal search arches and Id Scanners. It was hoped and expected that, given the earlier co-operative approach of the licence holder, the conditions would resolve the earlier issues.

However with three months of the first review hearing, the club’s new security procedures had been breached by a gang of males who forced their way into the premises on two separate occasions in January and February 2016. The males had pushed and shoved their way past security and were able to enter the venue without being searched. One male in the group was later identified as being responsible for the earlier stabbing incident that had triggered the first summary review. On the second breach of security, the licence holder called the police who took some time to arrive and took little action when they did. Curiously, the licence holder had made a deal with the males that if they left the club and re-entered via the metal search arch then he would not forcibly remove them (the licence holder later indicated he was waiting for the police to do so). The licence holder argued that he had behaved properly and responsibly on both of these occasions when the males had forced entry and this was borne out by the fact that there had been no serious incidents of violence.

Absence of trigger incident

Although there was some relatively mild pushing and shoving involved in both the January and February 2016 incidents, Croydon Police’s Chief Inspector agreed during questioning that he did not consider this amounted to “serious crime or serious disorder”, at least in the non-legal sense. It didn’t involve anything more than a common assault at worst. There was no serious punching or kicking or injuries or use of weapons of the type that would typically justify a summary review application.

However Croydon Council submitted that the law did not require any specific “trigger-incident” to justify the second summary review application. So long as a senior police officer was satisfied that the premises was “associated” with serious crime and disorder then the police were justified in instigating the review. In this case the police referred back to the long-track record of serious incidents at the venue that had occurred prior to the first summary review application (including several knife incidents). The Council argued that it would be illogical to treat the most recent incidents in a vacuum. Time did not simply start at the conclusion of the first summary review, albeit that review sought to draw a line under the previous problems. On the second summary review the whole track-record of Club 791 could be properly taken into account by the Council (and the appeal court) in assessing what appropriate and proportionate steps were required in order to promote the licensing objectives. This clearly included, the Council submitted, events that had already been considered at the first review, in addition to the further incidents in early 2016.

What’s more, the Council argued, the case of Lalli [2015] EWHC 14 (Admin) indicated that it was not for the Council (or by extension the appeal court) to look behind the certification by the Police Superintendent that, in his opinion, the premises was “associated” with serious crime or serious disorder.

It was also pointed out that, for the purposes of summary review proceedings, the pushing and shoving exhibited by a large gang of males trying to gain entry to the club in early 2016 did technically fall within the strict legal definition of “serious crime” as set out (somewhat expansively) in section 81 of the Regulation of Investigatory Powers Act 2000 (to which the Licensing Act 2003 refers). This is because the behaviour did involve the “use of violence” (albeit low-level) and was “conduct by a large number of persons in pursuit of a common purpose”.

The Council accepted that it may well be that summary review procedures are intended to deal with more serious incidents of crime and disorder than pushing and shoving. But the serious background to these incidents (and in particular the very serious knife incidents that led to the first summary review) served to justify the police’s view by the time of the second summary review that Club 791 was (still) “associated” with serious crime and/or serious disorder. The Council submitted that the failures of the licence holder to put in place adequate security measures to prevent the breaches in early 2016 justified the Council’s decision to reduce Club 791’s hours to more traditional bar hours and remove the DPS (among other steps).

The District Judge’s decision

In a detailed written judgment (handed down at Camberwell Magistrates’ Court in a revised form on 30 March 2017 and available on the Institute of Licensing’s website), District Judge Susan Green accepted all of the Council’s arguments and dismissed Club 791’s appeal. In the course of her judgment she rejected accusations of misconduct and impropriety levelled at Croydon’s police officers by the appellant. She ordered the appellant to pay the Council’s costs of £27,000.

The new summary review guidance

This decision needs to be seen in light of the new section 182 Guidance issued in April 2017 that now incorporates guidance on Summary Reviews within a new Chapter 12. The new guidance re-emphasises that summary reviews should remain a power of last-resort for police forces:

[12.2] “The powers complement the general procedures in the 2003 Act for tackling crime and disorder associated with licensed premises and should be reserved for the most serious matters which cannot be adequately or otherwise redressed unless urgent action is taken…

[12.7] “…it is not expected that this power will be used as a first response to a problem and summary reviews triggered by a single incident are likely to be the exception.”

Croydon Council’s statement

Councillor Hamida Ali, Croydon’s cabinet member for communities, safety and justice said after the decision:

“On 10 March 2016, the council’s licensing sub-committee thought long and hard about what measures would be appropriate to reduce the risk of serious incidents happening at these premises.

“They took the decision to reduce the opening hours and the hours for licensable activities at weekends and it’s reassuring that, after listening to nearly two and a half days of evidence and legal argument, the district judge has come to the same conclusion in upholding the decision of the sub-committee and dismissing this appeal.”

It is understood that Club 791 has now closed its doors permanently.

Gary Grant of Francis Taylor Building appeared for the London Borough of Croydon, instructed by Jessica Stockton and Nicola Thoday of the Council’s legal department and Michael Goddard, Licensing Manager.