Published: 09 June 2017 by Nick Arron
The saga of Greene King versus the Gambling Commission has produced a further twist in this rather long tale.
The Court of Appeal has rejected Greene King’s latest challenge, finding that the Gambling Commission has wide discretion when assessing whether an Applicant’s operating model is consistent with the Licensing Objectives.
Greene King originally applied for a non-remote Bingo Operating Licence from the Gambling Commission to enable the provision of unlimited stake and prize Bingo in its pub premises. Although the Gambling Commission was satisfied of Greene King’s competence to offer the proposed activities, it ultimately refused the application on the grounds that it would be harmful to the Licensing Objectives to permit commercial gambling as an ancillary activity in pub premises rather than in dedicated gambling environments.
Greene King successfully appealed that decision to the First Tier Tribunal on the basis that it was for local Licensing Authorities, under the premises licensing regime, to assess the nature of the premises in which gambling would be provided. The Gambling Commission did not have an effective right of veto on applications for premises licences.
Unfortunately for Greene King, the same argument was not successful in the Upper Tribunal, which found in favour of the Gambling Commission following its own appeal, which led to the latest round of challenge to the Court of Appeal.
The Senior Court found that it was open to the Gambling Commission to consider an Applicant’s suitability along with the proposed operational business model and whether the nature of gambling premises would be consistent with the Licensing Objectives. The judgment stated that the Gambling Act 2005 was supportive of only low-level ancillary and occasional gambling in pubs conducted primarily for incidental entertainment. The Court determined that there was no force in the arguments submitted by Greene King and the appeal was dismissed with costs awarded.
The matter has now been referred back to the First Tier Tribunal and the Court of Appeal has stated that Greene King is still able to raise each of its grounds for a successful determination, which will be assessed on their merits. The Court also stated that it was open to the Commission to conclude that visitors to pub premises might be vulnerable to high stake gambling following the consumption of alcohol.
We wait to see whether the First Tier Tribunal will deviate from its original determination following reassessment of all the facts in this case.
Interestingly, the Gambling Commission attaches a condition to all non-remote bingo operating licences, which provides that licencees must ensure that the function along with the internal and/or external presentation of the premises are such that a customer can reasonably be expected to recognise that it is a premises licensed for the purposes of providing bingo facilities. This control mechanism, applied to licensed commercial gambling premises, emphasises the Gambling Commission’s intention that ambient gambling, which is ancillary to the primary purpose of a premises should remain low-level and non-commercial in nature and that customers should be able to make clear choices when entering a commercial gambling environment.
For further information on this issue contact Partner and Head of Betting & Gaming, Nick Arron, 0115 953 8500.
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