In attendance and speaking at the hearing:
Applicant: Mr D. Foley
Surrey Police: Mr J Coen, Legal Counsel
Sergeant P. Goodale
Mr I Sandwell, Licensing Officer
Licensing Manager: Mr B. Murray
Legal officer: Mrs J. Hamilton
The Committee was requested to determine an application for transfer of the premises licence at the above premises.
The application was before the Sub Committee because a formal objection had been lodged by Surrey Police under section 42(6) of the Licensing Act 2003.
The report before the Sub Committee set out details of the application and the formal objection to the transfer made by Surrey Police.
It was noted that the transcript of four witness statements had also been circulated to all those present before the hearing and formed part of the Police’s submissions.
Surrey Police had also made a formal request for CCTV video extracts to be shown at the hearing as part of its submissions.
The Licensing & Regulatory Manager introduced the report and advised the Sub Committee that the Eagles Nest Public House had formerly been known as the Tower and, before that, as the Dog and Duck.
Mr Foley had been the Designated Premises Supervisor since 13 July 2015 and the premises licence was currently held by Marstons PLC.
Mr Coen was invited to make submissions on behalf of Surrey Police, during the course of which the following points were noted:
• The objection was made under section 42(6) of the Licensing Act 2003. It was very rare for Surrey Police to use this particular piece of legislation and in this particular case it was satisfied that exceptional circumstances existed to justify its concern that if the application was approved, it would undermine the crime prevention licensing objective.
• On a number of instances the licensing conditions had not been complied with and these could be summarised as follows:
Under condition 1 of Annex 3, ..”a personal licence holder should be on the premises on Friday and Saturday nights from 1800 hours to closing”.
On 2 April 2016, no personal licence holder was present at 18h47, or at 21h00 when licensing checks were undertaken. Mr Foley was telephoned at 21h00 and he said that the licence holder (X) must be running late. When X arrived, however, X indicated that the licence had been lost and that Mr Foley was in the process of obtaining a replacement. A subsequent police check showed that X was not a personal licence holder and had never held a personal licence.
Under conditions 6 and 7 of Annex 3 (conditions attached after a hearing), ‘a zero tolerance drug policy to be agreed with Surrey Police’ and ‘all public toilets to be checked not less than twice per hour’..
A zero tolerance drug policy had not been agreed with Surrey Police, and it was difficult to see how regular toilet checks could be undertaken when only one person was on duty, as had been the case during licence checks.
• The first main Incident referred to in the Police statement related to the evening of 1 January 2016, when one of four men behaving suspiciously was stopped and searched by doorstaff who found a quantity of drugs on him. The drugs were taken and secured, but rather than calling the police immediately the man was allowed to leave and the police were not called until the following day, denying them the opportunity to take the matter further.
• The second incident which gave rise to Police concerns was Mr Foley’s physical behaviour and language during an incident involving a group from the travelling community, which took place on 14 February 2016. The incident had culminated with Mr Foley being issued with, and accepting, a police caution for a public order offence.
• A further incident involving Mr Foley in an altercation took place on 27 February, less than two weeks after he had been formally cautioned for affray.
CCTV footage of this incident was shown to the Sub Committee.
A man was seen initially involved in an exchange with doorstaff outside the pub. When Mr Foley came out the exchange moved away from the pub and ended with a blow being struck by Mr Foley. It was noted that this incident was not formally reported by the person involved and was thus not investigated further by the police.
• An incident of serious assault by an unknown male took place on 31 March. Further details could not be given because of an ongoing police investigation but it raised serious questions about the support, training and behaviour of bar staff who had continued serving alcohol to the assailant throughout the evening, despite witness accounts of his confrontational behaviour towards other customers.
• In a letter to Surrey Police, received on 6 May, Mr Foley wrote that the doorstaff were all directly employed by him. If this were the case, Mr Foley would require a frontline licence, however, he did not have one.
• On 10 March 2016, a Europa League football match was broadcast on two television screens in the premises. BT Sports held exclusive licence rights and the pub did not have a commercial agreement in place to broadcast the match. This was witnessed and confirmed in a statement by a member of the Federation Against Copyright Theft (FACT).
• The second extract of CCTV footage shown to the Sub Committee concentrated on two females outside the premises. They appeared to be in disagreement and one of them appeared extremely intoxicated and was passing out on the pavement. Police were in attendance and an ambulance was called.
Mr Foley said that the women had been in the pub since 20h45 but the women claimed that it was earlier and the Police concern was that bar staff had continued to serve the women despite the fact that they were clearly becoming inebriated.
• Mr Foley had refused to supply the police with CCTV footage taken in the pub on 7 May. This related to a drunk male who had been ejected by doorstaff and who made a subsequent allegation to police that he had been ‘strangled’ by the staff. Although the allegation was subsequently withdrawn, and officers who had witnessed the incident believed that only reasonable force had been used, the refusal to show the CCTV gave the Police cause for concern.
Mr Foley, the applicant, was invited to make submissions, during the course of which the following points were noted:
• Mr Foley had been working in the licensing trade since 1995. He had been previously responsible for running three large pubs in the Croydon area and had an excellent record from his time there.
• Mr Foley moved to Redhill in October 2014 and was given the opportunity of taking over the Tower (as the pub was previously known) in January 2015.
• Mr Foley met with Murrae Hume, the police licensing officer at the time, who checked his record with Croydon, because of the reputation of the pub, and was satisfied that he was suitable.
• At that time, because the pub had a bad reputation, the licensing conditions specified that four doormen should be on duty, but under Mr Foley’s supervision a licensing variation had been granted to reduce this to two.
• Notwithstanding this, Mr Foley always made sure of having sufficient doorstaff when the pub was busy and he was currently employing four, one of whom was female.
• There were no incidents during the first year of Mr Foley’s management.
• Mr Foley would describe himself as a strong licensee although he did not go above and beyond what was legal. It was not his style to call the police every time there was a minor incident, as he was aware of the limitations on police resources and that they would be deployed according to grading of calls.
• The police had only given part of the picture about the incident on 14 February, for which he was arrested for affray and his own CCTV footage was not shown, although he had asked for this.
The incident began when he was attacked by four or five travellers in the pub and sustained a bruised lip and black eye. The travellers began to disperse when the police arrived.
One police officer was in attendance and his daughter was outside. He went back out, a punch was thrown and he retaliated. Following this he was arrested and spent 22 hours in police custody before being charged. He would be contesting the charges against him.
• Marstons, who were the licensee at the time, were not informed about any of the incidents by the Police.
• In December 2015, the pub had to be closed because of a fight that broke out between travellers. When the Police arrived the travellers walked away.
• On 14 December 2015 there was a domestic incident outside, where a member of staff was being assaulted by her boyfriend. Mr Foley assisted the police in dealing with the incident and it had taken 14 officers to restrain the man.
• Regarding the incident referred to by the Police, and when he did not report his suspicions of drug dealing until the next day, Mr Foley explained that he had made a judgment call.
It was New Years Day and his door staff had informed him that there were four men acting suspiciously. Rather than risking a confrontation he waited until one of men went to use the toilet and then detained him under the CCTV. He searched him and found drugs but rather than risking an incident when the man’s friends came to join him, they were escorted off the premises and banned for life.
The incident was reported the following day and yet the Police did not come to collect the drugs for another three days. The CCTV images were provided to the Police which identified the males.
Mr Foley discussed the incident with the current licensing officer. He accepted that there had been an error of judgment on his part, and agreed that he would call the Police immediately another time.
• The police objection included reference to an incident which took place on 30 January, in which a man had been ejected from the bar for being rude. Mr Foley questioned the relevance of including this as it had no bearing on his application.
• In the incident of 9 February referred to in the police statement, Mr Foley was simply defending himself and a member of staff against a male who was being abusive. The male started the aggression by hitting him with a roll of tinfoil, to which Mr Foley only responded in self-defence.
• Regarding the incident on the evening of 14 February, for which Mr Foley was cautioned, he had been out with his girlfriend that evening and his daughter had been on the premises. The Police had only seen part of the incident in identifying him as the aggressor whereas he was actually defending his daughter. He was cautioned for affray and not for assault.
• Mr Foley took no part in the incident recorded by the Police on 27 February and his only role had been to offer make a statement witnessing that no assault happened.
• Mr Foley was not a bully and his action in striking the man, shown in the CCTV footage from 27 February, was pre-emptive because he feared for his own safety when the man jumped down from the tree. Before that, the man had been making direct threats to him which was not recorded by the CCTV.
Having seen the footage of this for the first time, it was clear that the man was unhappy because the doorstaff had been flirting with his girlfriend and that is what had started the incident. He was not sure why the doorman had put his gloves on before remonstrating with the man, and agreed that it was curious, but in any event both the doorstaff involved had subsequently been dismissed and were not on the list he had provided of SIA approved staff.
Mr Foley was well aware that he could not deploy doorstaff without holding a frontline licence and the Police had misunderstood what he was saying. He paid a management fee to one of his doorstaff for him to deploy them and could provide details to the Police.
He had attended a very good meeting with PS Goodale at which it was even suggested that he may like to chair Pubwatch. He had declined because he did not agree with their policy of only a short-term ban for drug dealing and believed that there should be zero tolerance and a lifetime ban. Mr Foley liaised with the police on drug use and was confident that he had had a positive impact and had virtually stopped drug use in the pub.
• Both Marstons PLC, the current licenceholder, and Belfrys, the leaseholder, were happy to have the licence transferred into his name and the Police had not reported any concerns to them.
• He had been running the pub for nearly a year before the first incident involving the travellers took place. They were not typical of the usual clientele and did not give a fair picture of the usual customers.
It was noted that this incident was the subject of an ongoing police investigation and that further information should not be disclosed or discussed.
• Mr Foley had asked for a meeting with PS Goodale to discuss his application ahead of the hearing, but she had not responded.
• He had been running pubs near to a football ground before with no problems, and was perturbed at all the licensing checks he now seemed to be getting.
• The member of his staff (X) referred to in the police submissions had passed the training and applied to be appointed as a PLH.
• All the staff had signed the training notes, they followed the Challenge 25 policy and did not serve anyone under 18.
It was noted that Mr Foley was referring to documents he had brought with him, however, these could not be taken into consideration as they had not been disclosed to the Police before the hearing.
Mr Foley advised that the documents had not been requested by the Police.
• All the premises log books were up to date and the only reason that notices had not been on display recently was because the premises were being redecorated.
• Mr Foley accepted that he had been at fault in broadcasting a Europa League football match without having a commercial licence, but this had been a one-off incident. He had now signed up to a commercial provider in order to be able to broadcast matches next season.
• There had been no problems since 8 May.
• The two women seen arguing outside on the CCTV footage were well known locally and to the Police. Although an ambulance was called, the woman who had appeared intoxicated could be seen ‘skipping’ down the road five minutes later in the company of her friend. They had been in another public house before going to the Eagles Nest.
• Mr Foley discussed the forthcoming hearing with the police licensing officer in Croydon who advised him to be absolutely truthful, which he had.
• There had been no licensing officer for Redhill for a period of time, following the departure of Mr Hume, and he only met the new licensing officer on 10 May.
• Mr Foley would be happy to offer a variation to his licence to increase the number of doorstaff to three. All the doorstaff employed now were excellent.
• Mr Foley was a member of the British Institute of Innkeepers and greatly valued his licence.
The Chairman thanked all speakers for their submissions and opened the floor to questions, during the course of which the following points were noted:
In response to a question about when Mr Hume resigned as Licensing Officer:
PS Goodale responded that it was on 8 January 2016.
In response to a general question about the Police’s involvement in Pubwatch:
PS Goodale responded that she had visited another public house in Redhill the previous week with members from the local authority in an attempt to get Pubwatch up and running again. It was left with the manager of the pub to contact other licensees as it was essentially up to the publicans to run Pubwatch although the police could offer support.
In response to a question to Mr Foley about whether he had a written drug policy:
Mr Foley responded that his approach had always been zero tolerance. There were signs up in the pub and anyone caught with drugs was given a life-time ban.
In response to a question about whether the doormen were all registered:
Mr Foley replied that they were. One doorman was currently reapplying for his badge but he had not worked for Mr Foley since January.
In response to a question about why he had allowed two women who were drunk to continue to be served:
Mr Foley replied that he was not there at the time, so could not comment in detail, but he had been told that they were drinking in another pub before coming into the Eagles Nest and that they had been mixing their drinks.
In response to a question about whether he had overreacted, when punching the man who hit him with a roll of tinfoil:
Mr Foley replied that he was protecting himself from being abused. He had been hit, regardless of the implement, and responded. Publicans were more at risk of attack than police officers.
In response to a question about his work history before entering the licensing trade:
Mr Foley replied that he had been in the motoring trade. He lost his job in 1995 and it was then that he was given an opportunity to run a pub. Originally he was only given a licence for one year, rather than three, so that he could prove his worth, but every licence since had been awarded for the full term.
In response to a question asking what licensing training Mr Foley had attended:
Mr Foley responded that his father had been a relief publican and that had given him day to day training. He had attended drug awareness courses, management training and refresher courses, but the majority of his training had been on the job and through the ‘school of life’.
It had never occurred to Mr Foley to apply for a SIA badge as he left that side of the business up to the doorstaff.
Mr Foley’s view was that calling 999 could be considered as a waste of police resources if people just didn’t want to leave. He was not a violent man and had only responded when people had threatened him. Bacofoil was a weapon and he had responded to the threat on him.
In response to a question about how Mr Foley managed staff training and attendance of a PLH when he himself was not present, as even if he paid a management fee to one of the SIA doormen it was ultimately his responsibility:
Mr Foley responded that he now had a PLH available to cover for him when he was out. His daughter and two other members of barstaff were also booked to take the PLH course on 25 June and to apply for a licence. This would mean four PLH subsequently being available.
All the staff read the training manuals and the doorstaff knew their job. He had already dismissed the two recorded in the CCTV footage because they should not have been smoking.
In response to a question about whether and how police emergency calls were graded:
PS Goodale confirmed that both 101 and 999 calls were graded, and that responses were based on level of urgency. It was true that 999 calls could be downgraded if considered less urgent. PS Goodale did not have a breakdown of the number of 999 calls made on a usual Friday or Saturday night, but these would all be responded to as appropriate.
In response to a question about whether, with hindsight, Mr Foley would agree that he should have called the Police earlier on the night of 1 January:
Mr Foley confirmed that he regretted not having done so and had already discussed this with the police licensing officer. He had called the Police for another incident which happened more recently, and a man had been arrested.
In response to a series of questions about when he took over the premises and whether he was familiar with the licensing conditions:
Mr Foley confirmed that he had taken over from the temporary manager in December. He had not been aware initially of the need for a PLH to be on duty at weekends.
In response to a question to Surrey Police about the results from ion itemiser swabs taken at the premises:
PS Goodale confirmed that this was a voluntary process and that they were not used in evidence. The results had shown quite high levels, but it would be fair to say that they were very similar to those taken in tests from other pubs in the area.
Mr Coen, representing Surrey Police, was invited to put questions and took the opportunity to clarify a number of points with Mr Foley. The following points were noted.
• The person on duty during the police check on 2 April was not a registered PLH. Mr Foley had thought that an application was going through.
• Mr Foley confirmed that the name of the PLH on duty on 27 February 2016 was Albina Ellston.
• Mr Coen referred to Mr Foley’s letter of 27 February, in which he stated that more PLH would be available in the near future. To date, this would not appear to be the case.
Mr Foley responded that his ex-partner was a registered PLH and was currently covering for him when he was not there. Three more staff members were due to attend training imminently and would then apply for their licences.
• Mr Foley confirmed that there had been no further incidents that he believed the Police were unaware of and that should be brought to their attention.
Mr Foley further asserted that the CCTV footage only gave a partial picture of events, as it did not record the full picture and there was no sound available to hear what was being said.
Mr Foley considered himself to be a good DPS and he would be challenging the Police caution he had been issued with, and which he had only accepted after 22 hours in custody.
• Mr Coen asked why Mr Foley had been unwilling to sign an undertaking not to disclose details of the CCTV footage as he had indicated that he was keen to work with the Police.
Mr Foley responded that he did not see the need, If PS Goodale had responded to his request for a meeting on the Friday he would have been able to watch it then (Noted: PS Goodale confirmed that she was not working on the Friday. Mr Foley was not made aware of this.)
• Mr Foley confirmed that the incidence recorded on 10 March was the only time where he had broadcast football matches illegally.
Although reference had previously been made by Mr Foley to this being a recording, it was confirmed that the matches were being shown live at the time.
• Mr Foley confirmed that he had retained his licence through ‘grandfather rights’ when the Licensing Act 2003 was implemented, rather than through subsequent training. He held no specific training qualifications although it was noted that these were not compulsory.
• Mr Coen queried how long it would be, before Mr Foley’s new PLH were fully registered and licensed to operate. It was noted that they were attending the training on 25 June and that it would then depend upon how long it took the local authority to process their applications. Mr Murray confirmed that the full process normally took from four to six weeks.
Following this, the Chairman invited the parties to summarise their representations.
On behalf of Surrey Police:
Mr Coen reiterated Surrey Police’s assertion that it believed that there were exceptional circumstances to justify an objection under section 42(6) of the Licensing Act and referred to all the incidents cited in the course of his submissions.
In particular, he commented that despite Mr Foley’s assertions in his letter of 6 May that further PLHs would be appointed, no concrete evidence had been submitted to support this.
Surrey Police was not reassured that the recorded incidents where a PLH had not been on site at at the weekend, and when football was being illegally broadcast, were the only times that this happened and that it was just ‘bad luck’ that checks were made at those times.
It was true that Surrey Police had been paying particular attention to the premises for which Mr Foley should be grateful as it had highlighted the various issues that needed to be addressed.
Surrey Police was not fully assured that the conditions were being complied with. For example, it was difficult to see how the required toilet checks could be made when only one member of staff was on duty.
Mr Foley had said that it was only a ‘stop punch’ he used in the CCTV footage shown, but it had knocked the other man down.
Surrey Police also questioned whether Mr Foley’s response to being hit with tinfoil was proportionate or reasonable.
Surrey Police recognised the Eagles Nest was a town centre premises with a challenging clientele, but this did not mix with a challenging licence holder or someone with Mr Foley’s particular character and skill set.
In conclusion, Surrey Police believed that it would proportionate to refuse the application for a transfer of the premises licence and for Marstons plc to remain as the licenceholder in order to ensure that the conditions were complied with.
On behalf of the applicant:
Mr Foley stated that Marstons plc no longer had anything to do with the premises and that they would not want to remain as the PLH.
He had held his PLH for 18 years with an excellent record in Croydon, and also in Redhill until the past year.
It had been unfortunate to lose Mr Hume, the police licensing officer, with whom he used to liaise regularly. There was not the same relationship with the current police licensing team.
It was true that there had been some recent issues, however, he was neither an angry man or a bully. Violence came with the job. It was a town centre premises pub, there was a young clientele and he did a good job.
With reference to some of the specific points made, it was difficult to see how the drug swabs came back high as the tops in the toilets were made of artex to make it difficult to lay out lines of drugs.
Mr Foley’s former partner was a registered PLH and provided cover when he was unavailable.
The only reason the notices had not been up on the walls was because the premises were being redecorated.
Mr Foley was volunteering to have three door staff on duty at weekends and was keen to work with the Police. His only objection to Pubwatch was that they did not operate a zero tolerance policy towards drugs and because he was a strong licensee.
Mr Foley concluded by stating that he could have put someone else forward to transfer the licence to, however, it was his job and name above the door, and he believed that it should be him holding the licence. He had invested a lot of his time and money into the pub and now had the best CCTV and doorstaff.
The Chairman thanked everyone for their submissions and advised that the Sub Committee would now adjourn to deliberate.
(The Sub-Committee adjourned to deliberate at 1.32.pm and resumed at 3.14 pm.)
RESOLVED that the application for transfer of the premises licence be REJECTED.
In reaching its decision:
a. The Licensing & Regulatory Sub Committee reviewed all the papers and evidence presented to it, including the report and its annexes, witness statements circulated prior to the hearing, and the two CCTV video extracts shown at the hearing.
b. The Sub Committee also paid careful attention to all oral submissions made by the parties during the hearing and to the responses to its questions.
c. It noted that Surrey Police was making its objection under section 42(6) of the Licensing Act 2003, because it considered that the application would undermine the crime prevention objective, and that this was the relevant issue to be considered in its determinations.
d. The Sub Committee gave due regard to the individual merits of this application, s149 Equality Act 2010, Human Rights legislation and in particular Article 8 and Article 1 First Protocol of the European Convention on Human Rights, and the rules of natural justice.
The Sub Committee considered the following matters to be particularly relevant in reaching its decision:
e. Surrey Police had presented clear evidence to show that the applicant had not fully complied with the licensing conditions.
f. The Sub Committee was not sufficiently convinced by the applicant’s explanations to reassure it that proper measures would be put in place to ensure that all conditions were fully complied with moving forward.
g. The applicant had not been upholding the minimum requirements for his role as the DPS and the Sub Committee gave limited weight to the applicant’s assertions regarding his future plans for additional Personal Licence Holders.
h. The Sub Committee is not reassured that the applicant has fully demonstrated his ability to manage incidents in what is a challenging town-centre premises.
i. There was no clear demonstration that staff are properly trained and no clear plans for how to address this in the future.
j. Having regard to all the aforegoing the Sub Committee supports the concerns of Surrey Police that the crime prevention objective will be undermined if the application is granted.
The Sub Committee also requested that the following observation be noted:
1. The Sub Committee noted that part of the problem seemed to be a breakdown in communications between the Police and the applicant, following the departure of the previous licensing officer. It hoped that, moving forward, the premises would have the support of the newly appointed police licensing officer.