Agenda item

Report of Head of Legal and Democratic Services.

3.1      Barry Panto, Senior Assistant Solicitor, introduced the report, addressing Members initially regarding guidance on the filming of Licensing Sub-Committee meetings.  There had been requests received in written weeks to film the proceedings of Licensing Sub-Committee meetings.  The Openness of Local Bodies Regulations 2014 that came into force on 6 August 2014 had caused some confusion in asserting that there is a right to film all local authority meetings.  However, as set out in the appended guidance document to the report, the regulations do not apply to meetings which are dealing with applications under the Licensing Act 2003.  Special rules needed to apply whenever a Sub-Committee was conducting a public hearing where evidence is given by the parties involved.               

3.2      Mr Panto advised that the Openness of Local Bodies Regulations 2014 would technically apply to hearings in front of the Sub-Committee when Members were considering applications under any other legislation than the Licensing Act 2003, including the Gambling Act and sex establishment licences under the Local Government (Miscellaneous Provisions) Act 1982.  Mr Panto explained that although the objectors to a sex establishment licence application were not entitled as of right to be heard under the 1982 Act, in practice they were usually heard if they wished to give evidence.  However, the licensing authority is not allowed to reveal the name or address of any objector to the applicant without his or her consent. There would be considerable concern if anyone attempted to film such persons on the basis that they are free to do so in accordance with the Openness of Local Government Bodies Regulations 2014.

3.3     Mr Panto referred to the recommendation in the report that the Committee agree paragraph 16 of the guidance document to amend the Council’s rules of procedure that apply to hearings before the Sub-Committee so as to include a detailed rules on the process for the determination of requests to film the proceedings.  Paragraph 16 set out a number of points including that the filming and taking of photographs at any hearing of the Sub-Committee would not be allowed without the express permission of the Chairman, a request to film or take photographs or make a sound recording should be made as early as possible in advance of the hearing and all parties would be consulted regarding such requests.

3.4      The Chairman stated that he could see no problems in terms of councillors being filmed as they had been elected and were publically accountable.  The dilemma related to the filming of other parties for Licensing Sub-Committee meetings.  He had received an e-mail from Councillor Floru who was not able to attend the current meeting.  Councillor Floru had chaired a recent application for a restaurant in Berkeley Street which had been filmed apart from the representations of the applicant who had specifically requested not to be filmed.  Councillor Floru’s particular concern was in the event that an unscrupulous production company edited footage in such a way that it appeared as though Members had not taken into account representations at a hearing.  He questioned whether it was possible to view material before it was broadcast.  The Chairman made the point that this would be complicated and would be out of keeping with rights to free speech.  Councillor Floru had added that in his view if all parties to the application did not agree that it should be filmed then having cameras in the room should be avoided.  The Chairman considered that one way to avoid the problem if certain parties did not want to be filmed was to only film Members of the Sub-Committee.  Mr Panto responded on the point in Councillor Floru’s e-mail that the parties had been consulted on the filming of the Berkeley Street application.  He commented that where there could be some difficulty was if a party to an application under the Licensing Act 2003 legislation not only objected to their own representation being filmed but also objected to the entire hearing being filmed.  Ultimately discretion, if Members were minded to amend the rules of procedure as recommended in Appendix A, would rest with the Chairman.   Members had concerns regarding the potential filming of sex establishment licence applications where parties had a right to remain anonymous.  This was an anomaly that DCLG needed to address.

3.5      Mr Panto addressed Members on the second part of the report, the exclusion of the public from meetings and exempt information.  The default position was that all Sub-Committee meetings are open to the public and that reports can be seen by the public.  It was recognised however that there are some applications before the Sub-Committee where the Police may request that the public are excluded so as not to prejudice their investigation.  These cases may involve possible prosecution of criminal activity by persons who are connected in some way with the premises under consideration.  Mr Panto made the point that requests were most likely to be received from the Police in respect of review hearings and particularly expedited review hearings.  The Police had in many cases in relation to expedited review hearings begun criminal investigations but not had sufficient time to complete them.   

3.6      Regulation 14 of the Licensing Act 2003 (Hearings) Regulations 2005 states that the hearing shall take place in public but that the licensing authority may exclude the public from all or part of a hearing where it considers that the public interest in so doing outweighs the public interest in the hearing, or that part of the hearing, taking place in public.  Mr Panto expressed the view from a legal standpoint that it should not be the case that the public should be excluded simply because of the nature of the evidence.  The Regulations did not apply to sex establishment licences or gambling hearings.  It was considerably less likely that the Police would request these applications to be heard in private but if such a request was made the Sub-Committee would have regard to the exempt information provisions contained in the Local Government Act 1972.

3.7      The Chairman stated that it was very much up to the parties concerned whether to make an application for the public to be excluded and for all Members of the Sub-Committee to consider it.  In two recent cases, the Police had brought reviews which included graphic detail and criminal investigations were still continuing.  Councillors had then questioned whether the evidence should be in the public domain, including on the Council’s website.  The Police had subsequently submitted a request for the applications to be heard in private and this request had been approved by the Sub-Committee.  In theory an attempt could have been made for part or perhaps all of the hearings to have been dealt with in public without the papers being in the public domain.  If the material was challenged, however, when it was not in the public domain then it would have been necessary for it to be heard in closed session.  Going forward, it was recommended that the licensing service would seek to ascertain from the Police whether any of the evidence supporting the application needs to be excluded from public access.  If the licensing service was not able to ascertain the views of the Police, the grounds for the review would be included in the licensing register but the application for review would not be attached.  In addition, the report to the Sub-Committee would not be placed on the Council’s website until the hearing or first hearing of the matter before the Sub-Committee so as to give the Police the opportunity to ask for the hearing to be conducted in private. 

3.8      Councillor Caplan commented that it appeared to Members as lay people that there was always the potential for criminal investigations arising from expedited reviews.  There were concerns about adding reports to the website.  This should however be a Police decision rather than a Member or officer decision.  Councillor Caplan and Councillor Acton both referred to the serious concerns raised by the disclosure of the name of the victim in one of the review cases. Peter Large, Head of Legal and Democratic Services, stated that it was particularly serious that the name of the victim was disclosed and officers would be as able as the Police to ensure this was avoided.  The proposed protocol was designed to prevent this happening again.  The issue of whether future criminal proceedings would be prejudiced was more difficult to judge.    Police licensing officers needed to get guidance on this from their colleagues who were responsible for prosecutions.  Councillor Caplan recommended that when the licensing service consulted the Police as to whether any of the evidence supporting the application should be excluded from public access, this should be a written request. 

3.9      The Committee approved the recommendations in paragraph 16 and 25 of the guidance document relating to the filming of meetings and exempt information respectively.  Councillor Evans also raised the point that papers for a review hearing often included a large number of pages of CRIS reports which were in most cases heavily redacted and not comprehensible.  He questioned the value of including some of this information in the papers.  The Chairman responded that it would be useful to Members if the Police were able to summarise the important information contained in these submissions for the Sub-Committee so that it was understandable.  Councillor Evans added that having a large number of pages of CRIS reports increased the potential for the name of a victim to be disclosed publically if an error was made and information was not redacted.

3.10     RESOLVED: (i) That the recommendation in paragraph 16 of the guidance document be approved (to amend all the rules of procedure that apply to hearings before the Licensing Sub-Committee so as to include a detailed rule on the process for the determination of requests to film the proceedings);

            (ii) That the recommendation in paragraph 25 of the guidance document be approved (to adopt a protocol for the exclusion of the public when the Licensing Sub-Committee is dealing with a review application under the Licensing Act 2003 or any other applications where the Police express concern that public disclosure may prejudice the investigation or prosecution of crime); and,

(iii) That the contents of the report be noted.