Minutes:
Representing the Devon and Cornwall Constabulary:-
Ms Lesley Carlo : Licensing Officer
Sergeant Neil Harvey
Mr David Campbell
PC Matthews
Mr John Bean
In attendance for the respondent were:-
Mr Matthew Phipps : TLT Solicitors
Mr Hugh O’Rourke : Punch Taverns Business Relationship Manager
Mrs Anne Spence : DPS The Half Moon
The Chair introduced the Sub-Committee Members and Officers.
The Licensing Solicitor reported that an application had been received from the Devon and Cornwall Constabulary seeking a review of the premises licence relating to the Half Moon, Whipton (the premises) under Section 51 of the Licensing Act 2003, as they believed that the licensing objectives relating to crime and disorder, prevention of public nuisance and the protection of children from harm were being undermined at the premises.
Introduction by Mr Campbell
Mr Campbell stated that the Sub Committee would be aware from the local paper that Ms Spence was a DPS in respect of the premises and other licensed premises and that her former partner had been imprisoned for three and a half years for actual bodily harm. Because of these circumstances it was likely that reference would be made to Ms Spence’s domestic situation during the course of the hearing and he therefore requested that the press and public be excluded from the meeting. The Crown Court had ordered that any reference to Ms Spence’s domestic situation be subject to contempt of court proceedings. It was necessary for the Licensing Sub Committee to make provision to address this with parallel effect.
Response from Mr Phipps
Mr Phipps, with reference to the Court Order, agreed that it would be appropriate for the press and public to be excluded from the hearing should any matter be discussed relating to the domestic situation of Ms. Spence.
The Licensing Solicitor advised that the hearing was not bound by the Court Order but that it could move to exclude the press and public in accordance with Regulation 14 of the Licensing Act 2003 (Hearings) Regulations 2005.
Ms Carlo stated that she wished to cover the following four areas:-
(1) Crime and Disorder
(2) Drugs
(3) CCTV
(4) Management of the premises
She also stated that the time set out in respect of incident 8 on the log of incidents should read 18.10 hours.
Crime and Disorder
She compared the logs of the various incidents at the Half Moon with the absence of any incidents at a neighbouring pub.
Mr Phipps, in response, stated that he had no questions under this section.
Drugs
Ms Carlo highlighted the following incidents.
Incident 8 in the log of incidents on 4 April 2009. A male had been stopped at the rear of the premises and admitted possession of herbal cannabis.
Incident 14 on 5 June 2009. Herbal matter believed to be cannabis had been found in the top draw of a bedside cabinet and Kirsty Brown, the former DPS at the premises, had been warned.
Incident 19 on 5 July 2009. A male had kicked chairs around claiming that his mobile phone had been stolen. He had left the pub but subsequently returned and was arrested for being drunk and disorderly.
Incident 29 on 14 August 2009. A male offender perceived in drink whilst in the car park of the pub as part of the Pubs against Drugs (PAD) operation had removed two wraps of cocaine from his pocket and hidden them behind a drain pipe and had admitted possession of cocaine, a Class A drug. The male had admitted that he had been in the pub prior to the Police arrival.
As the Half Moon was a premises that welcomed children, possessing a cornered off area for them to play. Ms Carlo stated that, in the opinion of the Police, these incidents undermined the licensing objective of the Protection of Children from Harm.
The Licensing Sub Committee viewed a DVD of the execution of a drugs warrant at the premises on 5 June 2009 when drugs had been found.
PC Martin Matthews responded to questions.
Cllr Gale: Were the clientele mainly male and local?
PC Matthews: Yes.
Cllr Gale: Were the toilets and wash basins seen on the DVD for customer use or for use by the residents?
PC Matthews: Mixture of both. After making the ground floor secure, the Police Officers moved to the first floor and landing.
Cllr Gale: Was there any significance relating to the ladder on the roof?
PC Matthews: This was not connected to our visit.
Mr Phipps: How many people were present in the pub?
PC Matthews: About 20-30, mostly male.
Mr Campbell stated that one individual in the DVD was well known to the Police for dealing in drugs. There was also evidence of drug use at the rear of the premises. PC Matthews reported that, from Police intelligence, it was known that two of the top 10 drug suppliers in the City drank in the pub. Small party balloons had also been found in the pub yard, the balloons being known to be used to hide drugs on a person. There was also evidence that a Class B drug – cannabis – had been smoked in the yard of the pub.
Cllr Newby: On what basis was the Half Moon chosen for one of the raids?
Mr Campbell: We have not picked on these premises at random but have acted on intelligence built up since March 2009. The raids were impromptu and at different times of the day. These premises have been linked to drug use for a long period.
Cllr Newby: Out of
six visits, a Class A drug was only found on one occasion. Have
illegal substances been found during raids on other
premises?
PC Matthews: No other premises were found to have drugs. Class B
drugs have been found in respect of this pub.
Mr Campbell: The traces of Class A drugs found in this premises on the previous occasion was consistent with intelligence relating to allowing the premises to be used.
CCTV
Ms Carlo read out the conditions required in respect of the operation of CCTV cameras.
Referring to incident no 11 on 14 May 2009 in respect of witness intimidation regarding an assault, a phone call had been made to the aggrieved from the bar phone which should have been covered by the CCTV. The CCTV equipment was kept upstairs and was not easily accessible to the public. Police Officers had tried to retrieve the footage but had found that the tape had been deliberately wiped. There were three locked doors preventing access to the equipment - a door at the bottom of the stairs, a door at the top and the room itself. It had been suggested that a member of the staff had allowed a member of the public access to the room. Alternatively, it had also been suggested that it had been someone staying at the premises who had wiped the tape. Ms Spence had since that event transferred the equipment to another room and was now the sole key holder.
There had been a licensing check on the premises on 30 May when officers had noted that one of the cameras had not been working. Similarly, a camera had not been working when the Police had been called to incident 13 on 31 May 2009 when a female bar staff fired earlier in the day had returned under the influence of alcohol and had been refused a drink. She had smashed an internal door causing criminal damage. Kirsty Brown, the DPS at the time, had been unhelpful when the Police had arrived and had refused to point out the offender with whom she was a friend.
Incident 17 on 5 July 2009 referred to a burglary when the till had been stolen. This had been reported by Ms Spence who then rang later in the day to report that the till had been located. An individual had been caught on camera stealing the till but could not be identified because the person’s features had been disguised by a balaclava. The camera footage had not made it clear if payment was being taken after hours but people were drinking after licensing hours. Numerous requests had been made for the CCTV however every time a disc was given it had been blank. Kayleigh Gibbons had stated that special software was necessary to view the footage. The disks had been sent to Plympton for analysis by the Police but no coverage had been revealed.
In response to Councillor Gale, Ms Carlo advised that the till roll had not been found when the till had been recovered. Ms Spence advised that this was not the case as the till had been found near the railway bridge on Summer Lane and that the till including the Z reading had been recovered. The till however had been smashed. The Z reading showed that the last sale had been at 00.11 hours.
The operation of the CCTV cameras was therefore below the expected standard, neither the Police nor the Licensing Authority having been notified that there had been problems in the operation of the CCTV. The conditions relating to the operation of CCTV had not therefore been met.
Because some of the issues under consideration in respect of the management of the premises were sensitive, a debate took place as to how to achieve the compromise without prejudicing the right of the public to attend. It was determined that the greater public interest was in hearing these issues in the absence of the press and public.
The public were called back in and it was agreed to exclude the press and public when those matters were to arise. The Licensing Solicitor explained the process to the representative of the press and of the need to protect the interest of the member of the public.
Management
The matters under this heading were of a sensitive nature and Section 14 of the Hearings Regulations was invoked.
The public and the press were invited back at 12.50 hours.
The Licensing Solicitor explained that the hearing was held under Licensing regulations rather than the Local Government Act. On that basis it was right that the hearing could move from public to private as necessary.
Mr Campbell referred the Sub Committee to other evidence including the petition from local residents and customers of the pub. He asked Ms Carlo if the Constabulary had a view on the petition.
Ms Carlo: The petition was received at the same time as the application for a review was submitted to the Licensing Authority. There are 83 signatures although a few, such as the ones with no addresses can be discounted. Of the 83 signatures, 40 people were known to the Police and 19 were known to the Police for drug offences. Ms Carlo asked if a letter from a couple living close to the pub could be used as evidence. The letter had not been circulated as it contained the names and address of the individuals who, for safety reasons, did not wish their details to be circulated.
Responding to the Licensing Solicitor, Mr Phipps accepted that the letter raised substantially the same points as he had already conceded and accepted but did not add or detract from the evidence so was not admitted. Mr Phipps stated that, with regard to the petition, 40 were known to the police and 19 in relation to the use of drugs and that, as such, it was not possible to treat this submission with full seriousness.
Mr Campbell stated that it was important for the Sub Committee to have all the evidence before it. He stated that Mrs Western who had initiated the petition was present at the hearing.
Mrs Western stated that the purpose of the petition was to express the concerns of the locals that the pub was being poorly run and to try and lobby for improvements. The pub was important to the local community and was a focal point for people in Whipton to socialise. The customers were keen to see improvements in the way it was being run, for example, better entertainment and improved cleaning.
Questions were put to Mrs Western.
Ms Carlo: You drink in the premises and have expressed an interest in taking over the management in the past. Are you still interested in managing the premises?
Mrs Western: No.
Mr Phipps : Do you feel that the premises requires a new landlord?
Mrs Western The pub lacks direction and is largely run by young people who do not know how to handle the customers. The public want an improved community pub with a better reputation.
Mr Phipps stated that he would address the issues of crime and disorder, drugs, CCTV and management in turn as raised by Ms Carlo and then seek the observations of Mr O’Rourke. He confirmed that he was not engaged to represent Ann Spence but it would inevitably cross over. He stated that the usual approach in reviews of this nature was to invite the hearing to consider actions that could be taken to improve the management of specific premises rather than revoking the licence. Punch Taverns was the single biggest licence holder in England and Wales and, since 2005, all premises were leased to the respective landlords. Punch Taverns was not a brewery. Mr O’Rourke’s was responsible for some 56 premises.
Crime and Disorder
As no incidents had been reported in respect of the neighbouring premises it was inappropriate to use it for comparative purposes. Although there were challenges in the management of the Half Moon, he questioned whether there was a justification for a review. With regard to number eight in the list of incidents relating to an individual found to be in possession of cannabis he stated that he could not see how this undermined the licensing objective of Protecting Children from Harm. The company did not approve of drugs on its premises and to claim that this compromised this particular objective was a step too far. It would be relatively easy to find individuals in other premises in possession of this drug.
A warning had been issued to Kirsty Brown, the Designated Premises Supervisor (DPS), after a raid on 5 June 2009 when she had admitted to owning some drugs found in the living accommodation on the first floor of the premises. An individual possessing drugs in the car park on 14 August 2009 had subsequently admitted to having been drinking in the pub prior to arrest. Mr Phipps said that to state that a premises had a serious problem with drugs because a single individual had been found in possession was tenuous.
On 31 May 2009 an incident had occurred when an ex-employee, dismissed earlier in the day, had returned to the premises under the influence of alcohol and caused damage to an internal window. The Police had described the attitude of Kirsty Brown, the DPS at the time, as unhelpful and Ms Spence had subsequently suspended her although she had been later reinstated as a member of the bar staff. The Police had then objected to the subsequent application for Kayleigh Gibbons to be the DPS at the premises. Subsequently, Ann Spence had taken over as the DPS with the support of Punch Taverns.
CCTV
Although there had been earlier concerns regarding the operation of the CCTV in addition to the belief that the system had been tampered with, Punch Taverns were now satisfied with its operation. The CCTV would not have been of assistance regarding the theft of the till as the thief had been wearing a balaclava. It was accepted that it was appropriate for the system to be locked away with Ms Spence the sole key holder.
Management
Ms Spence had been unable to give full attention to the Half Moon because of other commitments. Following negotiations on Friday 4 September it was hoped that commitments in respect of other public houses could be relinquished. The Flying Horse, of which she was also DPS and leaseholder, was managed by a separate couple. Ms Spence had been previously looking to change the management of this premises but the person identified for the role had not passed the BII NCPLH (Part 2) Course. The Stoke Canon was in process of being disposed of by Punch Taverns and Ms Spence’s tenure of these premises would therefore soon cease. In addition, consideration was being given to transferring the DPS in respect of the Westgate (a premises in Somerset) to Ms Spence’s mother.
Mr Phipps stated that the criminal acts listed in the Official Guidance issued under Section 182 of the Licensing Act, such as grooming of children by/for paedophiles, sale of firearms, sale of Class A drugs etc. and others that did not apply in this case.
He suggested that in cases where the licensing objectives were being compromised suspension was a more appropriate course of action than revocation. This could allow improvements to be made in the management of a premises such as introducing conditions relating to hours of opening, training, use of an incident book and arrangements for contacting the Police.
Mr Campbell: Can you explain why Ms Spence was in a
position of being a multiple DPS?
Mr Phipps : The issues surrounding Ms Spence being a multiple DPS holder are shortly to be resolved and therefore no longer appropriate in the consideration of this review.
Mr O’Rourke
Mr O’Rourke explained that he was the Business Relationship Manager with responsibility for 56 premises, each with an independent landlord. The Half Moon was among the most challenging of these premises. The petition with 83 signatures was from customers of the Half Moon.
Mr Phipps: Do you consider Ms Spence to be the best person and how long have you had dealings with her?
Mr O’Rourke: I have known Ms Spence for two years, initially as DPS for the Flying Horse and then Micawbers (Former name for The Half Moon).
Mr Phipps:Are any of the other four pubs your responsibility?
Mr O’Rourke : The Stoke Canon Inn falls within my colleague’s area. The Westgate Inn has been in my area for four years and has operated without any problems.
Mr Phipps : Would it be correct to say that the Half Moon requires the full attention of a dedicated DPS and that there would be no benefit in removing the current DPS.
Mr O’Rourke : Yes. Ms Spence keeps me updated and Punch Taverns feel that she is suitable for this position. Consideration had been given to transferring the DPS of the Flying Horse to another person but that individual had not passed the BII course. With regard to the Westgate, consideration is being given to transferring the DPS to Ms Spence’s mother. She is a former publican.
Ms Spence
I have been working in the licensed trade since I was17 years old and previously worked for Whitbreads. I subsequently trained to become an accountant specialising in pub accounts. I have worked at Exeter City Football Club, working closely with the Directors prior to the FA enquiry and then moving on to run the Centre Spot. I subsequently ran the Golden Lion for Punch Taverns, then the Flying Horse and the Half Moon. I still do accounts work for the licensed trade. The intention was to employ Kirsty Brown as the DPS at the Half Moon as she was looking for a challenging position but she subsequently lost interest and, following the incident involving the Police, the decision was taken to suspend her. Kayleigh Gibbons subsequently took over as DPS until the Police objection was raised.
Ms Carlo’s Do you believe that you are capable of being a multiple DPS?,
Ms Spence : I intend to relinquish my DPS status at the Flying Horse and, as Punch Taverns have indicated their intention to sell the Stoke Canon Inn, I will soon no longer have any interest in this pub either. With my mother in charge at the Westgate Inn I will focus solely on the Half Moon. This scenario has only been made possible following negotiations involving the lease holder’s solicitor on Friday 4 September.
Mr Phipps : What steps did you take in respect of the Police concerns regarding possession and consumption of drugs at the Half Moon?
Ms Spence : Notices were placed in the premises stating that the use and sale of drugs would not be tolerated. The Police advised on the location of four cameras as part of a new CCTV system and had expressed their satisfaction with the system following a check on Thursday 3 September 2009. The system is brand new and there are currently no problems with the footage.
The incident involving the theft of the till occurred on the night when many customers were attending a birthday party at The Arena nightclub and, as a consequence, the early evening had been very quiet with only seven people present in the premises. It had subsequently filled up when many of those attending the party had returned to the premises and the two staff serving at the bar had struggled to get everyone to leave at closing time. The till roll subsequently recovered had shown that the last drink had been served at 00.11 hours, the CCTV showing that the Z reading had been completed at that time.
Mr Phipps : What are your intentions regarding the future management of the Half Moon, particularly control and supervision?
Ms Spence : Two current staff members were also employed by previous landlords. One young member of staff was sacked but had subsequently returned on a number of occasions under the influence of drink. It is my intention to continue as the DPS but I will recruit someone to help run the pub. I will be on the premises as much as possible although not on a strict 24/7 basis. Fridays, Saturdays and Sundays are the busiest days with two/three staff in attendance. Last bank holiday was very busy and five people were employed during that period. The presence of a fully functioning CCTV system will assist in the internal management and enable me to keep an eye on the premises even when I am in the living accommodation.
Mr Phipps : Will your presence at the premises make matters easier?
Ms Spence : Yes and No.
Mr Campbell questioned the representatives of Punch Taverns and Ms Spence.
Mr Campbell : The Half Moon is considered the most challenging of the pubs you are responsible for. Would you say that the Flying Horse is the second most challenging?
Mr O’Rourke : The majority of the Punch Taverns pubs are rural or located in town/city centres. Those near social/Council housing are the most difficult.
Mr Campbell : Is it correct to say that, as of the present time, Ms Spence is a DPS in respect of four premises?
Mr O’Rourke : Yes.
The Licensing Solicitor reminded parties that cross examination was not permitted before a hearing of the Licensing Sub Committee and to restrain himself to questions of evidence put forward.
Mr Campbell : If Ms Spence is present at the Flying Horse how can she deal with problems occurring at The Half Moon? Even though a management couple have been in place at The Flying Horse for a number of months a substantial amount of drugs were found following a raid.
Mr O’Rourke : The drugs were found in The Flying Horse car park not within the premises itself.
Mr Campbell : Do you accept that between February and mid July when Ms Spence was DPS there were some 20 incidents in respect of the Half Moon?
Mr O’Rourke : There were a number of occasions when Ms Spence had been required to call the Police.
The Licensing Solicitor issued another warning regarding the cross examination of parties. Mr Phipps commented that it may be a small point but proceedings had not been adversarial up to this point but it now seemed that we are in Exeter Crown Court at a murder trial.
Mr Campbell : There were a further 10 incidents between mid July and the end of August. Do you accept that problems have occurred at the Half Moon on her watch?
Mr O’Rourke : With regard to the discovery of drugs at the Half Moon, I was surprised at the small amount found. The pub was not riddled with drugs.
Mr Campbell : Four doors away from the Half Moon is a pub which has not attracted Police attention.
Mr Campbell : Have there been problems in the running of the premises? Do you think that you have failed in your responsibility as a DPS?
Ms Spence : There has been no failure in my role as DPS.
Mr Campbell : Can you explain how you managed four premises at the same time?
Ms Spence : I am not solely responsible for the day to day management of all four premises. The Stoke Canon Inn is looked after by an employee and the Westgate is run by my mother. Following the action taken on 4 September 2009, I intend to stand down as DPS for the Flying Horse. In respect of the Half Moon, the Police have assured me that any calls made to them in respect of one individual would not go against me. At present, as DPS, I attend the Flying Horse every day, the pub possessing a separate management team.
Mr Campbell : How do you feel about the petition in respect of the Half Moon?
Ms Spence : I do not believe that the signatories wished to get rid of me. I speak to many of them and I believe that the intention was to stop the review and the potential closure of the pub.
Sergeant Harvey : Do you agree that the Half Moon is a difficult pub to run and how do you propose to improve it?
Ms Spence : I will introduce a number of changes including the installation of new management and training staff.
Ms Carlo : Can you confirm that the new management proposed for the Half Moon will not be the current management at the Flying Horse?
Ms Spence :Yes.
Mr Campbell : Has it been considered that there could be a Police objection to the proposed new management for the Half Moon?
Mr O’Rourke : I would not allow a change unless I was happy with the proposed new pub managers. Given the concerns of the Police, I intend to speak to Ms Carlo before installing new management at the Half Moon.
The Licensing Sub Committee rose at 14.20 hours for a lunch break. The meeting re-convened at 14.40 hours and held the next part with the public excluded.
The press and public were re-admitted to the hearing at 15.10 hours.
Ms Spence stated that she had nothing to add to her earlier statements other than to say that she hoped to resolve the issues relating to her being a multiple DPS within the next two/three months.
Mr Campbell apologised for any concerns caused by the style of some of his earlier questioning of the representative of Punch Taverns. He stated that the Police had every sympathy with Ms Spence’s position and circumstances surrounding her private life. He emphasised however that regard should be given to the operation of the Half Moon more than the circumstances of the DPS. He stated that the final decision should be based on past behaviour at the pub rather than relying on behaviour and management promised for the future.
Because over 30 incidents had been recorded at the premises in 2009 he stated that it should be viewed that there was “no smoke without fire” and that the problems at the Half Moon were not confined to drugs only. For example, on 17 July 2009, the Police had reported ten underage youths sitting on a wall outside the pub, one of whom was drinking alcohol. The mother of one of the youths worked behind the bar on Friday nights. On 31 July 2009 a young woman’s drink had been “spiked”, the drink retained by the bar staff and handed over to the Police. A fight had been reported on the premises on 22 August involving 25-30 youths. Therefore the licensing objective in respect of Crime and Disorder was not being met. Both Ms Spence and Punch Taverns had conceded that there were problems in the running of the pub.
He made the following comments in respect of the schedule of conditions put forward by Mr Phipps:
CCTV Improvements to the CCTV were unlikely to eliminate the problems associated with this pub.
Drugs Despite Ms Spence operating a policy of zero tolerance with regard to drugs, problems persisted.
Incident Book Maintaining an incident log book and reporting issues to the Police was just common sense.
DPS If the premises had benefitted from good management there should have been improvements.
He suggested that the conditions put forward by Mr Phipps would not deal with the problems being experienced. The circumstances of the case did not relate to Ms Spence but to the nature of the premises. Of the 50 or so premises under the jurisdiction of Mr O’Rourke, Punch Taverns acknowledged that the Half Moon and the Flying Horse were the most challenging. The Police felt that the circumstances surrounding the former were serious as the premises was not, in the view of the Police, promoting the licensing objectives. The concerns of the Police related to the premises itself rather than Ms Spence.
Mr Campbell suggested that options that could be considered by the Sub Committee included suspending the licence for a period of, for example, up to three months or revoking the licence. He suggested that the Sub Committee should consider opting for the higher end of its powers given the extent of mischief that occurred at the pub. The Police did not agree with the assertion of both Punch Taverns and Ms Spence herself that she was capable of running the pub. Mr Campbell stated that Ms Spence had conceded that there were problems with the Half Moon and that she was presently unable to concentrate on one premises only. Because of this she was unable, as the DPS, to promote the licensing objectives. As long as she was responsible for the Stoke Canon Inn, the Westgate and the Flying Horse it was not possible to properly uphold the licensing objectives in respect of the Half Moon. The review was not against Ms Spence but the pub itself. He stated that the conditions referred to by Mr Phipps did not adequately address the level of mischief that occurs at these premises. This was evidenced by the number of incidents over the seven month (28 weeks) period between February and August.
In conclusion, he stated that although it served a small community it left a lot to be desired in the way it was run. The pub was broken and could not be remedied by the DPS or anyone else. The only remedy was to start again with a new broom. New management was required but only if they were able to put new measures in place.
The Licensing Solicitor invited Mr Phipps to respond to the suggestion made by Mr Campbell that the Sub Committee should revoke the licence. Mr Phipps asserted that this was clearly not a revocation case and that such a conclusion would be draconian and a decision of last resort. He reminded the Licensing Sub Committee of the guidance previously referred to.
He stated that the Police raid in search of drugs had been in response to intelligence received. It had transpired that drug presence on the premises had been minimal and there was not a scintilla of evidence of drugs being sold or of money laundering.
Mr Campbell stated that a suspension would be appropriate given that both Punch Taverns and Ms Spence had both accepted that there were management problems.
The Sub Committee retired to make its decision in the presence of the Licensing Solicitor and the Member Services Officer.
The Licensing Sub Committee determined that, having heard evidence from all the parties, considered the relevant guidance and the Council’s statement of Licensing Policy as well as the relevant legislation, the Sub Committee decided to adjourn the determination of this review application to the first available date after three months to allow the current DPS the opportunity to extract herself from the responsibilities that she had as DPS of other premises and to focus on the management and supervision of the Half Moon public house before this Licensing Sub Committee determines what, if any, powers it is necessary to exercise to promote the Licensing Objectives.
It was agreed that the applicant (the Police) should file any updating statements by 16 November 2009 and the respondent (Punch Taverns) by 23 November 2009 with a view to there being a hearing after Monday 7 December 2009.
(Report circulated)