Published: 10 March 2016 by Nick Arron
Over the past couple of years, there have been a number of articles in these pages on Greene King’s attempts to obtain an Operating Licence from the Gambling Commission, to allow them to provide commercial bingo in their pubs. In the latest decision in the litigation, the Gambling Commission succeeded in their appeal to the Upper Tier Tribunal. Judge H Levison in the Tribunal agreed with the Gambling Commission, confirming that they had the power in the Gambling Act 2005 to refuse Non-Remote Bingo Operating Licences to Greene King.
First the background.
Greene King originally applied for the licences in 2014, and it was clear then that the Gambling Commission had concerns with the concept of commercial licensed bingo, and the provision of high stakes gaming machines within pubs; premises which are not primarily concerned with the provision of facilities for gambling. This is despite many similar premises, such as holiday parks, operating commercial bingo in licensed entertainment venues. The Gambling Commission, when hearing the original application, refused to grant the licences. Of note, the Gambling Commission panel was satisfied that Greene King were fit and proper to hold a licence. However, they decided that high stakes bingo and high stakes prize gaming machines, with jackpots up to £500, in a pub environment had the potential to offend the licensing objectives of the Gambling Act 2005, of ensuring gambling is fair and open and protecting children and other vulnerable people from being harmed or exploited by gambling.
The decision was a matter of principle; they were concerned that permitting an application of this nature, in High Street pub premises, could lead to thousands of applications by other pubs on the High Street, and they therefore decided to take a precautionary approach and refuse the applications.
Greene King appealed this decision to the First Tier Tribunal who, at the end of 2014, found in their favour, deciding that the Gambling Commission did not have the power to make the decision which they had, and remitted the applications back to the Gambling Commission with a direction that they be granted.
Not surprisingly, the Gambling Commission appealed the First Tier Tribunal decision to the Upper Tier Tribunal, and it is the Upper Tier Tribunal which has recently handed down its decision – that the Gambling Commission can take a precautionary approach; they are permitted to do so under the Gambling Act 2005, and they can refuse applications because of concerns about potential harm to the licensing objectives. Apparently, evidence of harm may not be required.
This latest decision will have a significant effect on the gambling industry, and could lead to the Gambling Commission taking a more conservative approach to who they licence and how they regulate, with potential calming effects on innovation and development of the gambling industry.
So what does this mean for bingo in pubs?
The decision, as it stands, means that traditional commercial bingo in pubs and other premises not predominantly for the provision of gambling, will not be allowed by the Gambling Commission. Pubs are still able to provide exempt equal chance gaming such as non-commercial bingo. Bingo played as exempt gaming is expected to be low level, and should be ancillary to the main purpose of the premises. The pubs cannot charge a participation fee, and the stakes are limited to £5 per person per game or, in other words, a limit of £5 on the cost of bingo cards per person per game, and no levy or deduction on stakes or prizes is allowed. The DPS becomes responsible to ensure the limits are adhered to. The total stakes or prizes for bingo games played in any 7 day period cannot exceed £2,000. Thus, records must be kept to ensure the limit is not exceeded.
As to gaming machines, Category D and Category C machines with a maximum jackpot of £100 are permitted, either by way of a notification, or where pubs are granted a Licensed Premises Gaming Machine Permit for three or more machines. Again, the ability to provide the machines under the existing provisions has not changed following this decision.
It is not necessarily the end of the litigation. The Upper Tier Tribunal remitted the decision back to the First Tier Tribunal for reconsideration on the merits and, indeed, Greene King could appeal to the Court of Appeal from the Upper Tier Tribunal, and we will of course keep you abreast of any further developments.
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