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Close encounters of a sexual kind

Spearmint Rhino Companies (Europe) Limited v London Borough of Camden

A challenge to the right of licensing authorities to insist on viewing CCTV has been dismissed by a District Judge. The challenge would have prevented conditions requiring venues to permit immediate inspection of CCTV footage. The decision also dealt with the relevance in licensing cases of factors outside the venue and beyond the control of the licensee.

Spearmint Rhino is a well-established basement lap dancing club in Tottenham Court Road, which applied for a sexual entertainment venue licence on the coming into force of the Policing and Crime Act 2009. The licence was granted subject to standard conditions, some of which were then appealed to the magistrates' court. The challenge, in brief, was that the club had operated without incident or complaint for many years, and so the conditions were not necessary or proportionate. The challenge failed. District Judge McPhee held that the Council was entitled to apply its standard conditions so as to achieve a fair balance between the right of the venue to operate and the right of the community to expect steps to limit the impact of the premises on the character and amenity of the locality. The conditions prevented leafleting, branded limousines and interior visibility into the lobby, even though literature would be discreet, the limousines ASA-approved and no sexual entertainment would ever be visible from outside.

One of the main bones of contention was CCTV. The club had extensive CCTV provision, with over 60 cameras and a secure CCTV viewing facility in the basement, but with a single monitor in the ground floor reception area. The Council required all cameras to feed to the reception area, so that Council officers and police could, without having to conduct a full licensing inspection, check that the venue was running consistently with its licence conditions. The club argued that to permit such an arrangement was contrary to the Data Protection Act 1998, because it would involve surveillance of individuals, including in sexual encounters, when no crime had yet been established to have been committed.

The argument was rejected by the District Judge. He held that the purpose of the system was two-fold: to check that the CCTV is working and to ensure that the club is operating in accordance with conditions, and therefore within the criminal law.

As to the Data Protection Act 1998, the District Judge approached the matter in three stages. First, he held that the images of people would be personal data within the meaning of section 1 of the Data Protection Act 1998 in that it would relate to a living person who could be identified from such an image. He did not however find that the data was sensitive personal data within section 2 of the Act, despite being urged that the images depicted the sexual life of the customers. Second, he held that section 27 of the Act disapplied the data protection principles because, under section 29 of the Act, the data were processed for the purpose of prevention or detection of crime. Third, he held in any event that the data protection principles were satisfied because disclosure of the data was necessary for compliance with the legal obligation to which the data controller was subject, namely the obligation to comply with the conditions on the licence, within the meaning of Schedule 2 paragraph 3. Therefore, the processing of the data complied with the data protection principle in Schedule 1 as being processed fairly and lawfully for that purpose. He found that the condition bit in a limited way, not to require disclosure of copies of the data but merely to require the showing of live images on a monitor in reception to a police officer or council licensing officer seeking to prevent or detect crime or simply to determine that the equipment is working.

A further aspect of the application was the club's wish to operate until 6 a.m. rather than the 3 a.m. terminal hour on its premises licence. It claimed that the club operated without incident, that the alcohol licensed hours were not to be extended, and that a last entry time on the premises licence would continue to operate. Residents objected on the grounds that touts operated in the immediately vicinity of the club who degraded the character of the area, and they had no wish for this to be prolonged nightly. The club retorted that touts operate outside all late night venues, and that the club did more than most in seeking to keep them at bay through vigorous management measures.

The District Judge held that, even though the touts were not the fault of the club, and that it was doing all it could to prevent their congregation near the club, the club was the reason they were there. The difficulty, he held, was the proximity of the club to many residential premises. He said:

"I am left in no doubt that the club is an attraction which draws touts to the vicinity and keeps them there whilst the club is open. It is pervasive and persistent and intractable. The behaviour of the touts is anti-social and is I find perceived by some as intimidating. The issue is not just the question of crime, disorder and nuisance but the wider character of the area. All the best efforts of the club have properly been put into seeking to eradicate the problem which they themselves describe as a scourge but to no real effect, save for a temporary displacement at a short distance. As I am sure of this and that when the club shuts at 4 a.m. the problem goes away, the only relief which I can give to the affected residents is not to add to the problems and difficulties caused until a solution can be found. For this reason alone I would refuse the club's application to extend their hours...."

The club's appeal was dismissed with costs of £23,000.

Philip Kolvin QC appeared for the London Borough of Camden, instructed by Sandra Ballentine.

Julian Skeens of Jeffrey Green Russell Limited appeared for Spearmint Rhino.