Agenda item

To consider the application for the review of a premises licence – Indian Villa, Thaxted.

The Chair adjourned the meeting at 10.20am.

 

The meeting reconvened at 10.30am.

 

At the invitation of the Chair, the Licensing Team Leader presented the report outlining the review of India Villa’s premises licence. She said Essex Police had sought a revocation of this premises licence based on the prevention of Crime and Disorder licensing objective, as persons had been found working illegally on the premises.

 

Mr Burke was invited to present the Police’s report to the Panel.

 

Mr Burke said on 21 June 2019 police officers had attended India Villa in relation to a report of harassment regarding a man who was known to work at the restaurant. On inspection, officers requested details of the five members of staff working at the location; only one of the five could supply identification. In all, four men were identified as immigration offenders and detained.

 

Three videos of the bodycam footage of the police’s inspection of India Villa were shown to the Panel. Two Police Officers were present and are shown to be questioning Mr Hussain regarding a harassment enquiry. The Officers are then shown around the premises, including an upstairs room with seven single beds that appeared to have been slept in. The Officers proceed to ask for the five members of staff working at the restaurant to present their ID. Only one of the five men presents identification. One man ignores the Officer’s request to remain in a designated area and flees upstairs. The Officer follows the man upstairs but cannot ascertain his whereabouts. It appears that the man has absconded from the upstairs window. 

 

Mr Burke informed members that the man who fled the building was later detained by officers nearby. He would also be charged with immigration offences.

 

 

In response to a Member question regarding the seven beds that appeared to have been slept in, the Solicitor confirmed that Environmental Health were aware of the health and safety issues at the premises and would be following up.

 

In response to a question from the Chair, Mr Burke said Mr Hussain had been arrested and his apparent obstruction of justice was part of the ongoing investigation.

 

In response to a question from the Chair relating to the workers’ pay, Mr Burke said one individual detained had confirmed that he was paid less than the minimum wage.

 

In response to a question from the Chair relating to the Designated Premises Supervisor, Mr Miah, the Licensing Team Leader confirmed that there had been no interaction with the appointed DPS.

 

In response to a question from the Chair, Mr Burke said only one right to work check dating back to January 2018 was found during the search. He confirmed that not one of the four men detained for immigration offences could provide identification.

 

Mr Logue was invited to comment on the review. As a neighbour to the premises he feared for his family’s safety and highlighted the example of the man who absconded from the upstairs window and jumped over Mr Logue’s fence and escaped through his garden. Furthermore, each night his family were woken by disturbances from the premises and he had witnessed violence outside involving employees of the India Villa. This had disturbed and traumatised his young family. He said Mr Hussein was no longer helpful as he believed Mr Logue had reported him to the Police. Mr Logue said he had no involvement in the matter. He added that the neighbour on the other side of the property had also reported anti-social behaviour.

 

 

At 11.05am the Panel retired to make their decision.

 

The Panel returned at 11.50am and the Chair read the decision. 

  

 

DECISION NOTICE – INDIA VILLA, 20 WATLING STREET, THAXTED

 

 

The application before the Panel today is for the review of the premises licence of the India Villa restaurant, Watling Street, Thaxted. The application is dated 28^th June 2019 and is at the behest of Essex Police as a responsible authority, pursuant to the crime and disorder licensing objective. We have already refused a tactical application for the transfer of the licence, made in the hope that thereby this application could be forestalled.

 

We have had sight of a detailed report and have considered the extensive background papers, including:-

 

(a)  Premises licence 

(b)  Plan of premises

(c)   Review application documentation from Essex Police under the Crime and Disorder objective.

(d)  Letter from a neighbouring resident (Mr Logue)

 

We have also had sight of the Licensing Act 2003,  the Home Office’s most recently Revised Guidance issued under section 182 of the Licensing Act 2003 (April 2018) and Uttlesford District Council’s Statement of Licensing Act 2003 Policy 2017-22. Further, we have also been referred to case law which specifically provides that a) deterrence of others is a consideration that this Committee may have in mind (The Queen on the Application of Bassetlaw District Council v Worksop Magistrates Court [2008] EWHC 3530 Admin) in making its decision and b) there does not have to be a conviction for an offence under the 2006 Act for a licence to be revoked under the crime prevention objective ( East Lindsey District Council v Hanif t/a Zara’s Restaurant and takeaway [2016]EWHC 1265 Admin)

 

By way of background, the India Villa restaurant is situated on the main road going through Thaxted, opposite the church. A plan showing its location is before us, and historically, the original application for a premises licence was granted on 18 November 2005. No representations were made in respect of the application and it was granted as applied for; there was no previous Justices’ licence.

In June 2017 there was an application to change the Designated Premises Supervisor (DPS). The Licensing Authority received a letter from the Police objecting to the proposed candidate, and at the commencement of the hearing on 31 July 2017 the application was withdrawn. At the same time, the Licensing Authority had also received an application for the review of the premises licence from Essex Police on the 5 July 2017 on the grounds of the prevention of crime and disorder. A hearing was scheduled to take place on 23 August 2017 but the licence was surrendered on 22 August 2017, and the review hearing did not take place.

A new premises licence was applied for in September 2018. No objections were received to this application so it was granted under delegated powers on 13 October 2018, and details of this licence (along with its hours and activities) are set out in our papers. The Council received the application before us on the 28 June 2019 on the grounds of the prevention of crime and disorder. The review application submitted by Essex Police is before us, including witness statements made under S9 Criminal Justice Act and other evidence: it is made pursuant to the crime and disorder objective, the reason being that police officers discovered disqualified persons working illegally on the premises.

 

The statutory crime and prevention objective in the 2003 Act includes the prevention of immigration crime and the prevention of illegal working in licensed premises. In particular, employing a person who is disqualified from work by reason of their immigration status is a criminal activity which, according to the Home Office Guidance to the Licensing Act 2003, should be treated particularly seriously.

 

In carrying out the statutory function, the Licensing Authority must promote the

the licensing objectives as set out in the 2003 Act, namely:-

 

a.    The prevention of crime and disorder

b.    Public safety

c.     The prevention of public nuisance

d.    The protection of children from harm

 

There is no hierarchy of importance and all must be given equal weight.

 

Following receipt of the Police application, procedurally a Notice of Review was issued by Uttlesford District Council’s Licensing Department and served by the Council’s Licensing Enforcement Officer on 1 July 2019.The Notice was displayed in the front window of the premises and details of the review have been advertised on the Council’s website. The Notice advised of the grounds for the review and requested representations should be made between 29 June and 26 July 2019 to Uttlesford District Council in writing.  All Statutory consultees were served a copy of the review application on 1 July 2019. No additional comments/representations were received from other statutory consultees during the 28 day consultation period, but one representation has been received during the 28 day consultation period from Mr Logue under the crime and disorder objective. This letter is before us and identifies ongoing alleged public nuisance concerns, both criminal and in terms of antisocial behaviour

The options that are available to this Committee are to

 

·         Allow the licence to continue unmodified

·         Modify the conditions of the licence

·         Modify the conditions of the licence for a period not exceeding 3 months.

·         Exclude a licensable activity from the scope of the licence

·         Exclude a licensable activity from the scope of the licence for a period not exceeding 3 months.

·         Revoke a licence

·         Remove the Designated Premises Supervisor.

 

We are advised that when carrying out a review of a licence, due regard should be given to the Licensing Act 2003 as amended and Regulations made thereunder, the Council’s Licensing Policy and the Home Office Guidance issued under Section 182 of the Licensing Act 2003.The most recent edition of this guidance issued in April 2018 includes new provisions in respect of immigration issues.

 

We quote these as follows:-

 

Paragraph 2.6 says ‘The prevention of crime includes the prevention of immigration crime including the prevention of illegal working in licensed premises. Licensing authorities should work with Home Office Immigration Enforcement, as well as the police, in respect of these matters. Licence conditions that are considered appropriate for the prevention of illegal working in licensed premises might include requiring a premises licence holder to undertake right to work checks on all staff employed at the licensed premises or requiring that a copy of any document checked as part of a right to work check are retained at the licensed premises’.

Paragraph 4.22 goes on to highlight the importance placed on immigration offences, as it considers that it is grounds for objecting to the granting of a personal licence on the basis that it would be prejudicial to the prevention of crime and disorder, while Paragraph 8.99 says (although in respect of objections to the transfer of a premises licence, again highlights that it would be appropriate), ‘in exceptional circumstances for objections to be raised by the police or immigration officials where the transfer would be prejudicial to the prevention of illegal working.’

 

The following paragraphs of the Guidance deal specifically with reviews of the premises licence, where crime and disorder is an issue. They highlight the seriousness with which the Secretary of State expects licensing authorities to treat immigration offences on licensing premises. Again, we quote:-

 

Paragraph 11.18 says ‘Similarly, licensing authorities may take into account any civil immigration penalties which a licence holder has been required to pay for employing an illegal worker.’

 

Paragraph 11.26 further says ‘Where the licensing authority is conducting a review on the grounds that the premises have been used for criminal purposes, its role is solely to determine what steps should be taken in connection with the premises licence, for the promotion of the crime prevention objective. It is important to recognise that certain criminal activity or associated problems may be taking place or have taken place despite the best efforts of the licence holder and the staff working at the premises and despite full compliance with the conditions attached to the licence. In such circumstances, the licensing authority is still empowered to take any appropriate steps to remedy the problems. The licensing authority’s duty is to take steps with a view to the promotion of the licensing objectives and the prevention of illegal working in the interests of the wider community and not those of the individual licence holder. ‘

Paragraph 11.27 goes on to say ‘There is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously. These are the use of the licensed premises:

• for the sale and distribution of drugs controlled under the Misuse of Drugs Act 1971 and the laundering of the proceeds of drugs crime;

• for the sale and distribution of illegal firearms;

• for the evasion of copyright in respect of pirated or unlicensed films and music, which does considerable damage to the industries affected;

• for the illegal purchase and consumption of alcohol by minors which impacts on the health, educational attainment, employment prospects and propensity for crime of young people;

• for prostitution or the sale of unlawful pornography;

• by organised groups of paedophiles to groom children;

• as the base for the organisation of criminal activity, particularly by gangs;

• for the organisation of racist activity or the promotion of racist attacks;

• for employing a person who is disqualified from that work by reason of their immigration status in the UK; [our emphasis]

• for unlawful gambling; and

• for the sale or storage of smuggled tobacco and alcohol. ‘

 

Paragraph 11.28 provides that  ‘It is envisaged that licensing authorities, the police, the Home Office (Immigration Enforcement) and other law enforcement agencies, which are responsible authorities, will use the review procedures effectively to deter such activities and crime. Where reviews arise and the licensing authority determines that the crime prevention objective is being undermined through the premises being used to further crimes, it is expected that revocation of the licence – even in the first instance – should be seriously considered.’

 

Moving on, the Council’s Licensing Policy (which may be found on our website) contains the following relevant paragraphs

 

3.3       The prevention of crime includes the prevention of immigration crime, and the Licensing Authority will work with Home Office Immigration Enforcement in respect of these matters.

 

§  The promotion of the licensing objective, to prevent crime and disorder, places a responsibility on licence holders to become key partners in achieving this objective.If representations are made to the Licensing Authority applicants will be expected to demonstrate in their operating schedule that suitable and sufficient measures have been identified and will be implemented and maintained to reduce or prevent crime and disorder on and in the vicinity of their premises, relevant to the individual style and characteristics of their premises and events [our emphasis].

 

3.4       When addressing the issue of crime and disorder, the applicant should consider those factors that impact on crime and disorder. These may include:

 

·         Underage drinking

·         Drunkenness on premises

·         Public drunkenness

·         Drugs

·         Violent behaviour

·         Anti-social behaviour

·         Illegal working

 

Control Measures

 

3.5       The following examples of control measures are given to assist applicants who may need to take account of them in their operating schedule in the event that representations are received, having regard to their particular type of premises and/or activities:

                       

(a)  Effective and responsible management of premises

(b)  Training and supervision of staff

(c)  Adoption of best practice guidance (e.g. Safer Clubbing, the National Alcohol Harm Reduction Strategy Toolkit and other voluntary codes of practice, including those relating to drinks promotions e.g. The Point of Sale Promotions published by BBPA, Security in Design published by BBPA and Drugs and Pubs, published by BBPA)

(d)  Acceptance of accredited ‘proof of age’ cards e.g. PASS, locally approved ‘proof of age’ cards e.g. ’Prove It’ and/or ‘new type’ driving licences with photographs or adoption of industry best practice (e.g. Challenge 25 policy)

(e)  Provision of effective CCTV and mirrors in and around premises

(f)   Employment of Security Industry Authority licensed                                 doorstaff

(g)  Provision of toughened or plastic drinking vessels

(h)  Provision of secure, deposit boxes for confiscated items (‘sin bins’)

(i)    Provision of litterbins and other security measures, such as lighting, outside premises

(j)    Membership of local ‘Pubwatch’ schemes or similar organisations

(k)  Right to work checks on staff and retention of documents

 

We are advised that if the Committee in its decision wishes to impose additional conditions, which is an option open to us among those listed earlier, the only conditions that we can  impose are those that are necessary and proportionate to promote the licensing objective relative to the representations received. They must not duplicate the effect of existing legislation.

 

The Home Office Guidance provides further assistance to us in paragraph 10.8 and 10.10 thereof, when it states that a licensing authority may not impose any conditions unless its discretion has been exercised following receipt of relevant representations and it is satisfied as a result of a hearing (unless all parties agree a hearing is not necessary) that it is appropriate to impose conditions to promote one or more of the four licensing objectives. In order to promote the crime prevention licensing objective conditions may be included that are aimed at preventing illegal working in licensed premises.

 

The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case-by-case basis and standardised conditions which ignore these individual aspects should be avoided. Conditions that are considered appropriate for the prevention of illegal working in premises licensed to sell alcohol or late night refreshment might include requiring a premises licence holder to undertake right to work checks on all staff employed at the licensed premises or requiring that a copy of any document checked as part of a right to work check is retained at the licensed premises. Licensing authorities and other responsible authorities should be alive to the indirect costs that can arise because of conditions.  We understand that the 2018 Guidance is the first edition to  specifically include immigration offences in the list of matters Licensing Committees are required to take into consideration, and says:-

“There is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously. These are the use of licensed premises for…..

 

·         Employing a person who is disqualified from that work by reason of their immigration status in the UK.

 

This repeats and reinforces the position at common law, and we have been referred to the decision of Mr Justice Jay in the East Lindsey case [2016] EWHC 1265, where he states

“The question was not whether the respondent had been found guilty of criminal offences before a relevant tribunal but whether revocation of his licence was appropriate and proportionate in the light of the salient licensing objectives, namely the prevention of crime and disorder….the prevention of crime and disorder requires a prospective consideration of what is warranted in the public interest, having regard to the twin considerations of prevention and deterrence….criminal convictions are not required.”

 

We have read all the papers before us, and we have seen bodycam footage provided by the Police.  We have also heard oral representations from Mr Burke on behalf of the Police and from Mr Logue, a neighbouring resident. Neither the premises licensee, the DPS or the transfer applicants have attended before us today, and since the transfer application was refused this morning the relevant parties are once more India Villa Thaxted Ltd and Ashik Miah. WE are satisfied that all involved were aware of the hearing before us and taking into account the interests of others involved and of the wider public interest we deemed it appropriate to proceed after deferring the start of the hearing to take account of traffic.

 

We have heard a great deal about the operation of these premises this morning, and note that there are a considerable number of matters not within the purview of the Licensing Authority. We understand from Mr Burke that a number of investigations by both Essex Police and UKBA are ongoing and we are informed that the Council’s Environmental Health teams are investigating a number of other matters: yet further matters are within the purview of yet other authorities and we trust that the Police are in contact with them.

 

We are mindful of the four licensing objectives and consider that three of them have been breached: crime and disorder, public safety and public nuisance. Mr Logue has raised matters with us additional to those raised by the Police and we are concerned at the behaviour to which local residents are subjected; this includes issues arising from the multiple occupancy of the upper rooms in the India Villa building and the bodycam footage we have seen shows the disgraceful conditions in which these unfortunate people lived.

 

We have taken into account everything we have both read and heard and at this point I repeat the provisions of the April 2018 edition of the Home Office Guidance. I make no apology for doing so. It specifically includes immigration offences in the list of matters Licensing committees are required to take into consideration, and says:-

“There is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously. These are the use of licensed premises for…..

·         Employing a person who is disqualified from that work by reason of their immigration status in the UK.

 

A civil penalty of up to £20,000 can only be levied if there is a contract of employment: however, the use of the words “disqualified from that work” suggest the Guidance also covers those who under the employment protection legislation are referred to as “Limb B” workers. Illegal working cause nothing but harm to society – those operating unlawfully do not pay taxes and levies that legitimate operations must, putting them at an unfair competitive advantage, it deprives people here legally of the opportunity to secure employment, and for those brought here to work in such conditions, it deprives them of access to proper housing, healthcare and leaves them working in conditions amounting to slavery.  Only the traffickers and those engaging illegal labour benefit from this wrong and this is unacceptable.

 

Again, without apologising for the repetition, the Guidance repeats and reinforces the ratio of the decision of Mr Justice Jay in the East Lindsey case [2016] EWHC 1265, where he states

“The question was not whether the respondent had been found guilty of criminal offences before a relevant tribunal but whether revocation of his licence was appropriate and proportionate in the light of the salient licensing objectives, namely the prevention of crime and disorder….the prevention of crime and disorder requires a prospective consideration of what is warranted in the public interest, having regard to the twin considerations of prevention and deterrence….criminal convictions are not required.” We respectfully adopt this. Furthermore, His Lordship then said “…the respondent exploited a vulnerable individual from his community by acting in plain, albeit covert, breach of the criminal law. In my view his licence should be revoked”. This case is on all fours with the one before us today, and in the light of the revised Guidance reinforcing the point, we agree with His Lordship’s conclusion.

 

The grounds upon which the Police have made this application are that Licensing Objective One, the prevention of crime and disorder, has been breached. The important word is “prevention” and   India Villa, Mr Miah and the Hussein family have all failed to prevent illegal working.  We have considered the decisions of R on the application of Bassetlaw District Council v Worksop Magistrates Court [2008] EWHC 3530 and East Lindsey District Council v Hanif t/a Zara Restaurant [2016] EWHC 1265 and are satisfied that the licensing objective is engaged. The evidence we have heard in its entirety shows that two other licensing objectives, namely public safety and public nuisance, are similarly engaged and we take note of this.

 

This Committee’s primary function is the protection of the public. Though we are not a Court and the standard of proof before us is the civil one of the balance of probabilities, we are satisfied that the unfortunate people referred to in the Police submissions were engaged to work unlawfully in this country. Sadly, their behaviour of itself constitutes a breach of the licensing objectives and it causes great distress to neighbouring residents.

 

We therefore consider that the premises licence should be revoked under S52 (4) (e) of the Licensing Act 2003 and that revocation is an appropriate step with a view to promoting the crime prevention licensing objective. We also, though we accept the revocation renders his role redundant, direct that Mr Miah cease to be DPS and record our view that he is not a fit and proper person to hold such a serious responsibility: as Chair of this Panel I will be writing to my counterpart at Enfield LBC, the authority issuing his personal licence, with our concerns regarding his suitability.

 

There is a right of appeal against this decision which must be exercised within a period of 21 days and during this period the license remains in force. Everyone will receive letters from the Legal Department explaining this.

 

The meeting ended at 12.00pm.

 

 

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