The Local Government Association has now issued a handbook designed for Councillors dealing with applications under the Licensing Act 2003. This is a document which we should be looking at to see what guidance is being given. This is not a statutory guidance document, such as the Guidance issued under S182 of the Licensing Act issued by the Home office and therefore does not have the same status but could be useful for when appearing in front of licensing sub-committees or in representing an appellant before the Magistrates Court.

The following link will take you to the full document:

https://www.local.gov.uk/sites/default/files/documents/10%2036_Licensing_Act_2003_V04%203_1.pdf

There is a lot of interesting content in the document and is really worth digesting, I will pick out some of the key points.

The section “strengths and weaknesses of the Licensing Act makes some very interesting points:

“In many respects, the Licensing Act is a positive model for a licensing system. It has a clear set of objectives, it allows local decision making, it has a clear appeals process and there are opportunities for everyone affected by a licence to make comments on it. Used creatively, licensing can be a tool to shape the places that communities live, work and socialise in and can help manage our concerns. However, the LGA has raised concerns about some weaknesses in the Act. Firstly, that the implementation of the Act has been consistently undermined by a lack of resourcing due to the centrally-set fee system. Secondly that the Act’s objectives have not been updated to reflect the return of public health responsibilities to local government. Licensing fees, which are set nationally have remained unchanged since 2005. The LGA has consistently argued that these fees underestimate the costs councils incur in overseeing the Act, and should be set locally. There have been various reviews and consultations around the localisation of fees over the last 10 years, and in 2015, the Government asked the LGA to work with it to develop an evidence base on the costs to councils of overseeing the Act. The LGA’s view is that locally set fees would re-dress the imbalance in fee incomes and whilst locally set fees might increase fees in some places, in others there may be decreases. Local fees could also benefit businesses, for example if there was a reduced annual fee.”

The document suggests that the LGA will push Government to look at local fee setting again in the future. It also suggests that the LGA still believes that a promotion of health licensing objective is needed:

“Lobbying for a health objective in the Licensing Act is long standing LGA policy. Whilst public health can contribute against any of the four existing licensing objectives, in practice it can be difficult for them to be heard; a specific ‘health’ objective could resolve that and allow a much more straightforward contribution. There is also strong support for a health objective among public health directors, Public Health England (PHE) and among some in Parliament. There has been a lot of work to build the evidence base for how this could work and PHE have piloted a health objective with eight advanced areas including Cornwall, Leeds and Wigan, which all developed practical ways to make using health data in licensing work. Building on this work PHE have developed an online resource’ 9 which brings together nationally available data and materials with local information to support councils to access a range of databases and tools. Local teams can input their own data to create interactive maps and reports to help them in their role as a responsible authority. Whilst there is no indication that the Government is going to take this forward, at least in the near future they continue to highlight the important role that public health plays in the licensing system as a responsible authority under the Act. This includes promoting the use of PHE’s analytical support package, providing public health teams with new tools to help effectively present relevant health data and supporting the Information Sharing to Tackle Violence programme to encourage A&E departments to share their data with community safety partnerships.”

The chapter on conditions is worthwhile reading and digesting.

“The setting of conditions is one of the most significant ways in which licensing authorities can influence the running of a premises. As well as mandatory conditions which are set out in the Act, authorities can also add ‘voluntary’ conditions to a licence. Used effectively, this can mean that authorities put in place the elements that are essential to promoting the licensing objectives. However, poorly designed or inappropriate conditions can have the effect of hampering a premises, preventing it from being financially viable and potentially leaving the community with an empty premises. The general rule is that conditions should be appropriate to the specific premises, necessary and proportionate. Many licensing authorities publish pools of conditions, which give applicants an idea of the types of conditions that may be imposed. It is recommended that these are published separately from the SLP to allow them to be updated in a more flexible way than the SLP would allow. Whilst pools of conditions are helpful, licensing committees should always avoid imposing these conditions as a matter of course, or as blanket conditions to be applied to every premises. The wording of such conditions should be seen as a template to ensure conditions are tailored to the specific operation of the premises. Licensing authorities must bear in mind that breach of any licence condition can potentially amount to a criminal offence, punishable by an unlimited fine and/or up to six months’ imprisonment. Conditions must therefore be clear, precise and proportionate in order for them to be enforceable.

Applications that do not attract any representations (or where representations have been withdrawn) are granted subject only to conditions consistent with the operating schedule and the relevant mandatory conditions. Officers will draft those conditions under delegated authority in that situation, drawing on their expertise and any pools of model conditions. However, if there have been representations then licensing authorities have the opportunity to impose or amend/modify conditions on the licence. Like any decision during a licensing hearing, the steps taken to impose conditions must be appropriate to promote the licensing objectives. A sub-committee should be proactive with conditions and it is always worth considering whether objections could be overcome by conditions. Comments should be invited on proposed conditions before they are imposed. Conditions can be imposed in any case where they are considered ‘appropriate’. The key thing to remember with conditions is that less is more. The premise licence holder will need to be able to easily implement them if they are genuinely to make a difference to how the premises are run. Licences may be issued with just the mandatory conditions. Licensing authorities should not aim to micro-manage premises through the use of conditions. Premises that appear to need more conditions than usual may have more fundamental problems in terms of management or planned operation. Many operators will put forward their own conditions when they make an application. This is to be welcomed, but licensing committees will need to ensure that all of these proposed conditions are genuinely necessary; properly worded so that they are enforceable; and are achievable. These conditions can also be modified or new conditions added.”

In the section about hearings and what to expect there is a reminder to the councillors who will be hearing the application under the heading Member conduct:

“Members must, at all times, comply with the council’s member code of conduct which should set out the standards that members must observe and include:

  • treat others with respect
  • do not bully or intimidate anyone
  • do not compromise the impartiality of an officer
  • give reasons for all decisions
  • the ‘prejudicial interest’ concept.

A prejudicial interest is ‘one which a member of the public, with knowledge of the relevant facts, would reasonably regard as so significant that it is likely to prejudice your judgement of the public interest’. Appearance of bias While third party lobbying of elected members is legitimate and councillors may make representations to the licensing committee on behalf of other persons, it is crucial for the licensing authority and its committee to ensure that there is neither actual nor an appearance of bias in its decision-making. It should also be remembered that concerns about political lobbying were the basis of the concerns which led to the first Nolan Committee on Standards in Public Life.

Section 25 of the Localism Act 2011 does not prevent councillors from publicly expressing a view about an issue or giving the appearance of having a closed mind towards an issue on which they are to adjudicate. However it is recommended that to avoid an appearance of bias the following advice should be observed.

  • No member sitting on the licensing subcommittee can represent one of the interested parties or the applicant. If s/ he wishes to do so s/he must excuse him/herself from membership of the sub-committee which is considering the application. Case law has also established they should not be in the room for the hearing once an interest has been declared.
  • If a member who sits on the licensing sub-committee is approached by persons wishing to lobby him/her as regards the licence application then that member must politely explain that they cannot discuss the matter and refer the lobbyist to his/her ward member or the licensing officer who can explain the process of decision making. If the member who sits on the licensing subcommittee wishes to represent them then s/ he will need to excuse him/herself from the licensing sub-committee.
  • Members who are part of the licensing sub-committee must avoid expressing personal opinions prior to the licensing sub-committee decision. To do so will indicate that the member has made up his/ her mind before hearing all the evidence and that their decision may not be based upon the licensing objectives nor the statement of licensing policy.
  • Members must not pressurise licensing officers to make any particular decisions or recommendations as regards applications.
  • Political group meetings should never be used to decide how any members on the licensing sub-committee should vote. The view of the Local Government Ombudsman is that using political whips in this manner may well amount to findings of maladministration. It may be advisable that the chair of the licensing sub-committee should state, during proceedings, that no member of the sub-committee is bound by any party whip.
  • Councillors must not be members of the licensing sub-committee if they are involved in campaigning about the particular application.
  • Other members (ie those who do not sit on the licensing sub-committee) need to be careful when discussing issues relating to matters which may come before the licensing sub-committee members as this can easily be viewed as bias/pressure and may well open that sub-committee member to accusations of such. While a full prohibition upon discussing such issues with committee members by other members may be impractical and undemocratic, local authorities are advised to produce local guidance for members on how such matters can be dealt with. Such guidance could include a definition of what is viewed as excessive, eg attempting to obtain a commitment as to how the member might vote.
  • Councillors must also be aware of the need to declare any pecuniary or non-pecuniary interests in matters that may come before them, whether these relate to policy issues or to specific applications.
  • Member behaviour is also governed by the code of conduct which members should have regard to, and most authorities also have a member/officer protocol which governs how members and officers should interact and the differences in their roles and responsibilities.
  • Members should consult their monitoring officers for further advice where necessary. A well-defined policy and comprehensive scheme of delegation to officers can go a long way to avoiding many of these pitfalls, although, of course, members must retain full oversight of how the scheme is working. There are no rules preventing councillors from sitting on applications within their own wards, although some authorities adopt their own rules to avoid this. Members may make representations about applications, make representations on behalf of others, or appear at a hearing if asked to do so by another person who has made a representation (subject to the rules above).”

All in all there is some really interesting stuff in this document and we wait to see if it is referred to in hearings.

The action-adventure video game, Grand Theft Auto, has recently made headlines for allowing its players to spend real money on gambling chips that can then be used in its new in-game casino, the Diamond Casino and Resort.

Whilst the players cannot directly buy the gambling chips, they can buy the in-game currency and with that, purchase the gambling chips. The in-game casino offers poker, slot machines, blackjack, video horseracing and roulette.

It does not appear that Grand Theft Auto had alerted players to this function, instead players have discovered the in-game facility and spread the word. It was originally thought that the only way players would be able to purchase chips would be by ‘earning’ them through playing the game, rather than being able to purchase them. It has also been reported that in countries where gambling is illegal, whilst they could enter the casino area, the ability to attend the gambling tables themselves has been blocked.

The question being asked is whether or not in-game gambling is the same as real life gambling – and whether the dangers are as real. Issues of social responsibility also arise, particularly as whilst the game is rated for ages 18 and above, it is extremely popular amongst teens. The fact that some countries have taken the stand that in-game is on a par with real life gambling, and have therefore banned the in-game function, makes this question extremely interesting.

Not being able to convert the chips back into real cash may be the only saving grace for Grand Theft Auto. At the moment, these kinds of in game purchases are not regulated as there is no way to make any real life gains on them.

The problem still stands – is this a “gateway” to real life gambling? After all, it must be possible, and consequently a risk, for the act of betting and winning online for no reward in a game to lead to betting and winning online for a real reward in real life.

Questions of money laundering must also be raised. If the game encourages players to invest in art as a way to launder money, who’s to say they won’t be encouraged to use the casino for the same purpose? Where does the gaming end and the reality begin? This will certainly be a topic to watch as the influx of virtual reality gaming is becoming increasingly popular in the gaming market.

I could have written this article about the Rugby World Cup 2019 that takes place in Japan from the 20th of September until the 2nd of November but actually, I think the principles have wider application than just one tournament taking place in the Far East.

Why am I writing this you ask? Well, because there are three certainties in life – death, taxes and that, without fail, someone will phone me up on the first day of a major tournament asking for help in order to show the games and provide Licensable Activities whilst doing so.

Major sporting events, be that the Fifa World Cup, the Olympics or the Ashes are planned years in advance and if the sporting bodies (who tend to lurch from scandal to scandal) can have the foresight to plan ahead, why shouldn’t Premises Licence Holders?

Particular issues arise where events are held in countries where the time difference is such that games are shown at times that are incompatible with most Premises Licences. The Rugby World Cup is an excellent illustration of this. Pool games kick-off times range between 12:15pm and 19:45pm local time, that’s 4:15am (if you really want to watch Namibia vs. Canada) to 11:45am. The Rugby World Cup Final kick-off is at 18:00 local time which is 09:00am here. Not many Premises benefit from a Premises Licence that authorises Licensable Activities from 04:15 onwards though some might be lucky enough to be winding up about that time.

One thing is certain. People are going to want to watch the games and people will adjust their schedules and their behaviours in order to watch their national teams – the lengths people will go to in order to watch live sport never cease to amaze me. My dear old Dad, for example, will get up in the middle of the night to watch the Australian Grand Prix. Not just the race either, the man will also get up and watch all the practice sessions and the qualifying! Lunacy, in my view, because at the point I’m usually in bed dreaming about obtaining 24 hour Premises Licences with no conditions or Summary Review applications being dismissed with no action taken at all but he’ll do it – year in, year out.

So, what can you do in order to bring sport to the masses and, I hope, turn a healthy profit in the process? First and foremost – CHECK YOUR PREMISES LICENCE – you may discover that, actually, you need do nothing at all but assuming that’s not the case and action is required there are a number of options.

Temporary Event Notices or TENs

You could give (apply for) a TEN in order to provide Licensable Activities outside the hours of your Premises Licence to, effectively, “bridge the gap” between your Authorisation and the event timings.

On the face of it, TENs seem like a good idea and if you only plan to show selected fixtures then they may be the way forwards. Problems arise however, due to the restrictions on the number of TENs that can be given per annum at a given premises (15 TENs covering no more than 21 days).

You wouldn’t for example, be able to show all the fixtures of the Rugby World Cup 2019 on TENs alone.

One advantage of TENs is that you can give the notices up until quite late in the day (5 clear working days before the event for a Late TEN and 10 clear working days for a TEN) so if you’ve missed the boat on the other options below, never fear.

Variation

Another option is to apply to vary your existing Premises Licence to take into account additional hours needed for the Major Sporting Event. You would need to go through the formal application process of making an application to the Licensing Authority, advertising the application on site and in a local newspaper and serving a copy of the application on the Responsible Authorities (unless you apply online).

One problem with this approach is that the Responsible Authorities (and Other Persons for that matter) might not be terrifically keen on you increasing your hours in perpetuity. A way around that might be to apply for “non-standard timings” specifically for Major Sporting Events. Your application would need to be very clear what you are applying for and when and so it might be worth having a Licensing Solicitor (hint, hint, hintity, hint, hint) have a look at the application for you to make sure you’re not making things worse for yourself.

Another potential pitfall of this approach is that some Licensing Authorities take the approach, on a variation, that they can have a look at other aspects of the Premises Licence too so if your beer garden or smokers are creating a racket then you might be taking on more than you bargained for!

Premises Licence Application

Alternatively, you could apply for a whole new Premises Licence. Why on earth would you do that I hear you ask? Well, first and foremost it protects your existing permission from interference from the powers that be. If you don’t get what you want or you end up with onerous conditions you simply bin the licence and carry on with your existing Premises Licence. Second, the costs, timescales and requirements for a Premises Licence application are identical to those for a variation so you would not be placing yourself at a disadvantage time-wise. Third, Licensing Authorities will generally accept a Premises Licence application that is “traded off” against the surrender of your existing Premises Licence and will often view the application differently than an outright new Premises Licence application.

The problem though is this – you may have an old licence, perhaps even one that came with you on conversion in 2005 and should therefore be coveted and looked after carefully. The Licensing Act 2003 is now 14 years old and, like a stroppy teenager, Licensing Authorities are starting to get wise to the ways of the world. Statements of Licensing Policy (which every Licensing Authority must have) are becoming more sophisticated and more tailored to suit the kinds of environments councils want to push. It may come as a surprise to you but, in policy terms, your pub or bar may no longer be flavour of the month so any application should be approached with a degree of caution and with sound advice (I’m hoping the first hint was enough, but you never know).

I’ve probably made all these options sound terrible but there is a correct answer, in my view, and that is an application for a time-limited Premises Licence.

Time limited Premises Licences are usually the province of festivals and outdoor events where the applicant will apply to provide Licensable Activities between X and Y and only between X and Y. But if the Fifa World Cup is a “festival of football” why should that approach not work equally for bricks and mortar operators? Think about it – you make your application for a time-limited Premises Licence, it has Major Sporting Event all over it and the timings marry up perfectly with the fixtures. You propose appropriate and proportionate conditions to promote the four Licensing Objectives for the duration of the Premises Licence. You risk assess the different hours and have that in your back pocket just in case questions are asked. Starting to look like an attractive proposition both for operators and for Licensing Authorities no? Remember, there can be more than one Authorisation (Premises Licence) in place at any given Premises or part thereof.

So if it was my money, my Premises that’s how I’d do it. A time-limited Premises Licence set up specifically for the purpose of a Major Sporting Event.

There are, of course, a whole host of other things you’re going to want to think about in terms of providing Licensable Activities during Major Sporting Events but hey, I’m a solicitor not a charity so if you’d like to know more please get in touch.

I have had a rush of non-compliance with conditions cases recently which can have very serious ramifications. If you are an operator and have a condition(s) on your licence which you feel is no longer relevant, it is overly restrictive and therefore disproportionate/inappropriate to promote the licensing objectives–you can’t just arbitrarily decide not to comply with it. Some of these non-compliance issues have led to interviews under caution and there is then potential prosecutions to come.

All conditions on premises licences have to be complied with. Non-compliance can have significant consequences. It can lead to you having a poor relationship with the Responsible Authorities, could lead to a review of your premises licence and/or lead to a prosecution under S136 of the Licensing Act 2003. I have 3 cases on at the moment where we are looking to have licences extended and relatively minor non-compliance with conditions could frustrate the applications being viewed favourably. I have also had a couple of reviews where non-compliance with conditions has been added in to bolster the application for review.

The most serious position is that of a potential prosecution.

S136 states:

Unauthorised licensable activities

(1) A person commits an offence if—

(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or

(b) he knowingly allows a licensable activity to be so carried on.

The potential sanctions are significant, being a term of imprisonment not exceeding 6 months and/or an unlimited fine.

Put simply, do not take the risk. If there is a condition on your licence you MUST comply with it. If you want to have the condition removed then speak to the licensing officer from the Authority and the relevant Responsible Authority officer. If it is a crime and disorder condition then speak to the police, if it is a public nuisance condition then speak to the Environmental protection officer. The condition may be old and no longer relevant, if so the authorities maybe amenable to the condition being removed by the simplified process of a minor variation.

You may have to go to a full variation application in which case we can prepare fully to explain to the licensing committee why the condition should be removed from the licence, you cant just not comply and run the risk of enforcement.

The S82 Guidance document issued by the Home office is very helpful when looking at conditions.

The link below takes you to the current edition:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705588/Revised_guidance_issued_under_section_182_of_the_Licensing_Act_2003__April_2018_.pdf

The most relevant paragraphs are:

Licence conditions – general principles

Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as“must”, “shall” and “will” is encouraged. Licence conditions:

  • must be appropriate for the promotion of the licensing objectives;
  • must be precise and enforceable;
  • must be unambiguous and clear in what they intend to achieve;
  • should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
  • must be tailored to the individual type, location and characteristics of the premises

and events concerned;

  • should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
  • should not replicate offences set out in the 2003 Act or other legislation;
  • should be proportionate, justifiable and be capable of being met;
  • cannot seek to manage the behaviour of customers once they are beyond the direct

management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and

  • should be written in a prescriptive format.

(Para 1.16)

If you have old conditions which do not follow the guidance it is worthwhile bringing it to our attention to see if it is a condition which should be removed or amended. Please do not just think that it isn’t relevant anymore therefore I wont comply with it. Act first and look to remove rather than run the risk of prosecution.

Presentation 1 – Fire safety – Post Grenfell  

Presentation 2 – Entertainment / Alcohol Licensing – What’s new?

Presentation 3 – Coroner’s inquests – what’s in it for me?

Presentation 4 – Sentencing and what does it really mean?

Presentation 5 – Regulatory smorgasbord  – topical round up of cases, developments and issues to watch out for

Presentation 6 –  Insurers – what can they make you and what can they not make you do?!

Woods Whur’s Regulatory Team would like to invite you to its latest regulatory seminar on 25 September 2019 from 9:00am until 12 noon at Gateshead College’s impressive seminar space.

Woods Whur’s niche specialist regulatory lawyers will be delivering a topical round up on a variety of regulatory matters from food, fire, health & safety to environmental, coronial law and entertainment licensing. We do hope that you can join us for what promises to be a useful series of presentations on the ever changing world of regulatory compliance, investigation and enforcement.

The speakers will be James Thompson, the Head of Regulatory Department, who has over 20 years’ experience acting for clients, subject to regulatory investigation and prosecution.  He also has many years’ experience from the police service.  James also sits as a Coroner for County Durham.

Along with James, Andy Woods will also be speaking. Andy is a nationally acknowledged expert in licensing & gaming law will be speaking on topical issues affecting those operating in that sector. Andy has specialised in licensing for over 25 years and has higher rights of audience which allows him to represent his clients in all UK courts concerned with any proceedings. Andy has received commendations for his skill in running large projects in the betting and gaming sector. He acts for international, national and individual operators concerned with both alcohol and gambling licensing.

Sarah Frow from within the Regulatory team will also be speaking alongside James and Andy. Sarah is a regulatory and licensing lawyer and assists business clients facing investigations and prosecutions by the police, the Health and Safety Executive, the Care Quality Commission, the Gambling Commission, Food Standards Agency and other regulatory bodies. As well as criminal proceedings, Sarah advises clients regarding inquests and public inquiries.

If you can join us, please contact Sarah Griffiths, our Seminar Co-Ordinator, on sarah@woodswhur.co.uk who can confirm your place/places and send you joining instructions.

We look forward to seeing you on 25 September 2019.
Woods Whur

On Tuesday 7th May, an updated version of the Licence Conditions and Codes of Practice (LCCP) was issued which introduced new age and identity verification rules. The main changes are as follows:

  • New licence condition 17 which sets out minimum requirements for identity verification
  • Change to the social responsibility code provisions 3.2.11 for age verification for remote betting and gaming
  • Social responsibility code provisions 3.2.13 for age verification for some remote lotteries

Affected operators must from the 7th May, have verified the name, address and date of birth of any customer and will need to have completed this before allowing a customer to gamble. Unverified customers must not gamble.

The GC has also published important new framework for measuring gambling harm amongst children and young people which gives a better understanding of the ways that harms from gambling can impact upon the health relationships and finances of young people. The launch of this new framework comes a week after the commission launched the new national strategy to reduce gambling harm.

The GC has also been busy meeting with a number of operators to discuss anti-money laundering policies and procedures and what is expected of the operator by the GC. These meetings are not strictly classed as formal inspections and are part of a wider GC approach to inform operators as to what is expected. No doubt those operators who have been through regulatory proceedings with the GC will have experienced the range of questions asked by GC officers and it will be interesting to see how those operators who have not been through any similar proceedings deal with the issues raised in the meetings.

GC officers are very clear on a number of key points:

  • Responsibility for compliance sits both corporately and individually. The Board of Directors have responsibility as of course does any compliance committee and MLRO but also those with personal management licences who are in senior positions which may not qualify as key qualifying positions have individual responsibility to ensure compliance.

  • Customer interactions remain poor, both in the recording of them and the quality of the interaction. It is simply not enough to say “spoke to Brian and everything okay” as both the conversation with “Brian” and the recording of it should be more detailed.

 

  • Operators are still not differentiating between source of wealth and source of funds. Source of wealth does not show where the funds come from and once trigger limits have been hit, operators are expected to have personal bank statements from customers showing that funds are coming out of a personal bank account and that there is sufficient funds in the bank account.

  • Keeping up to date with all changes and requirements is still not up to the standards expected. All staff but in particular, all licensed staff are expected to regularly keep themselves up to date with any changes to regulations but also with any GC cases and operators should learn from GC reports of ongoing cases which can be found on their website.

  • The role of the MLRO and those involved in the wider AML team has changed significantly and greater resource is required to enable the MLRO and their team to ensure compliance with the regulations away from any commercial pressures.

All of the above means that it remains a very challenging team for the industry which must learn to adapt and evolve its policies and procedures so as to ensure compliance and avoid regulatory action and sanctions.

Readers may have already seen the report by the London Night Time Commission which was published at the end of January. For those who haven’t had the opportunity of reading this in full, please click on the link below.

https://www.london.gov.uk/sites/default/files/ntc_report_online.pdf

This is a very interesting document which has been created by the London Night Time Commission. The commission is made up of a varied sector of people ranging from industry representatives to a commander in the Metropolitan Police Service, Kate Nicholls the Chief Executive of UK Hospitality and various London Borough personalities.

The recommendations to come out of the report have been fed into the Mayor of London to consider shaping any future policy. The recommendations are as follows:-

  1. The Mayor should put the night at the heart of London policy making. He should introduce a Night Test for all new policies to rate their impact on London’s culture, sociability, wellbeing and the economy at night.
  2. The Mayor should produce Night Time Guidance for Borough’s. This will help them develop holistic night time strategies that go beyond the night time economy and cover all aspect of their town centres and over areas between 6pm and 6am.
  3. The Mayor should set up a London Night Time Data Observatory. This central hub of data on the economy, transport, licensing, infrastructure, safety and health would help Borough’s create their Night Time Strategies and inform local decision making.
  4. The Mayor should publish an annual report on London at night. It should include a series of night time metrics that shows his progress in implementing the night time commission’s recommendations and achieving the ambitions of his 24 hour city vision.
  5. The Mayor should establish a Night Time Enterprise Zone fund that Boroughs can bid into, starting with a path finder zone in 2020.
  6. The Mayor should carry out research to establish the case for longer opening hours across London.
  7. The Mayor should help establish new partnerships across the capital to improve safety, reduce violence and make London welcoming for everyone at night.
  8. The Mayor should develop guidance to help Boroughs, landowners and developers create welcoming, safe and vibrant public spaces at night.
  9. The Mayor should set up a Late Night Transport Working Group to ensure that workers, visitors and customers can get around London quickly and safety at night. The group should consider extending night services, introducing a “Night Rider” fare that allows workers to move between bus, tube, train, DLR or tram in a single fare, and encourage more use of TFL’s land and buildings at night.
  10. The Mayor should extend the remit of London and partners so that they can promote London’s night time offer to Londoners.

These recommendations are dealt with in detail in the report which is well worth a read.

Moving into action from this report will be very interesting. Clearly, every London Borough has its own approach to the night time economy in its specific area. Most London Boroughs have very specific localised statements of licensing policy which have been developed over a significant period of time.

It will not be easy to integrate any London wide recommendations suggested in the report on a local basis and there would be much work to do at a local level to take up these recommendations.

The main suggestion in the report is that the London Night Time Data Observatory would be created to centralise data on the economy, transport, licensing, infrastructure, safety and health, to inform policy makers.

The high street faces significant challenge in its retail function and many believe that a mixture of residential and leisure opportunities will replace some of the dying retail operators. There is real vision in this thorough report. Kate Nicholls states, “We can extend the opening hours of our traditional cultural offerings to reach more Londoners and we can bring underused spaces to life at night and help tackle the decline of our high streets.” These are laudable aims but they come with a considerable challenge. We have found it is particularly difficult to challenge stress areas and cumulative impact policies where Boroughs have deemed that it would be detrimental to the licensing objectives of crime and disorder and public nuisance to either add additional sites or increase the hours of operation. There would need to be a considerable change of emphasis at a local level if the hopes contained in the report stand a realistic chance of having a practical impact.

We will continue to monitor the development of the issues raised in this policy statement.

After years of lobbying and debate, the Department for Digital, Culture, Media and Sport finally issued its much-anticipated Consultation on society lotteries and their financial limits on 29 June, via Tracey Crouch MP, the Minister for Sport and Civil Society.

The sector has long been campaigning for an increase in the financial limits which apply to society lotteries, which currently stand at annual total proceeds (ticket monies) of £10m, proceeds per draw of £4m and a maximum top prize of £25,000 or, if more, no more thank 10% of the proceeds. This effectively means that, at present no-one can ever win more than £400,000 as a top prize in a society lottery.

Of course, this is all designed to protect the position of the National Lottery as being the only lottery product where one might hope to win a life-changing sum. However the society lottery sector has argued that the current financial limits hamper its ability legitimately to raise money for good causes and the Government is now re-evaluating the position, recognising that society lotteries are “a fundamental part of the giving landscape” and acknowledging the views of many charities who say that money from society lotteries and the National Lottery are “complementary sources of funding that enable us, in different ways, to carry out our vital work.”

The Gambling Commission’s (“GC”) advice to Government is that the recent growth of the society lottery sector has not been to the detriment of National Lottery sales. The pervading view currently seems to be that the two can peacefully co-exist and that, indeed, the society lottery market might even encourage participation in the National Lottery.

This Consultation, then, seeks to enable the society sector to grow in a sustainable manner and in a way that is complementary with the National Lottery. The Government’s “preferred options” are to:

  • increase the per draw sales limit to £5m;
  • increase the annual sales limit to £100m; and
  • increase the per draw prize limit to £500,000.

Whilst the annual limit is perhaps what the sector was after, many will be disappointed with the proposed modest increases for individual draws. The prospect of an increase to a £10m individual draw limit remains on the table, though – but so does cutting it to £2.5m, or leaving it as it is. Government is also looking at leaving the annual proceeds limit in place, or raising it only to £50m rather than £100m.

All of this only applies to large society lotteries, licensed with the GC. For small society lotteries registered with Local Authorities, the Government has no preferred view; instead, the Consultation suggests leaving matters as they stand (ticket sales of £20,000 per draw and £250,000 per year) or raising them to £30,000 or £40,000 and £400,000 or £500,000, respectively.

There is no doubt in my mind that this constitutes a pivotal point for the society lotteries sector and that what emerges as a result of this Consultation will shape its future for many, many years to come.

It is therefore essential that all in the sector and anyone with an interest in using lotteries (or raffles, which are the same thing in law) have their say before this Consultation closes at noon on 7 September. A link enabling you to do so is here:

https://dcms.eu.qualtrics.com/jfe/form/SV_6lieJGckYiFSrM9

We will, of course, report on the outcome in a future edition of our Newsletter.

The Gambling Commission (“GC”) has just released its “Raising Standards for Consumers” Enforcement Report 2017 – 2018, which includes a clear message from the new Chief Executive, Neil McArthur, as well as a number of exposes of anti-money laundering (“AML”) cases which have been brought by the GC.

I made it clear at our conference at the Hippodrome on 8 May 2018 that poor practice would not be tolerated and that the industry as a whole needed fully to ensure that its AML policies and procedures were fit for purpose.  There have been a number of review cases brought by GC between 2016 and 2018 and there is no doubt at all that there will be further cases brought by the GC, if the industry does not keep pace with AML requirements.

A failure to comply with the AML Regulations could in all likelihood lead to a licence review, significant penalties and potentially revocation of the operating licence.

The GC document includes sections on AML, customer interaction, self-exclusion, unfair terms and practices, marketing and advertising, together with its final section on illegal gambling.

Neil McArthur introduces the document and confirms that the aim of any enforcement work is to “raise standards” in the industry.  The fact that standards need to be raised should set a clear message for all to understand.  The GC is still finding many examples of leading operators who do not have the requisite AML policies and procedures in place and, even when the requisite policies and procedures are in place, they are often not implemented by staff.  In my experience, this is one of the key issues that the industry is now having to deal with.  It may be that an operating company has very good policies and procedures and it may be that technically those procedures have been written to comply with the AML Regulations.  However, if staff dealing with customers do not fully understand these policies and procedures and do not implement them, then the policies and procedures are not worth the paper they are written on.

Neil McArthur continues by confirming that the GC will seek to raise standards through targeted action (that drives a culture where operators act in a way that:

  • minimises the risk to the licensing objectives and reduces gambling-related harm;
  • puts the interests of consumers first by treating them fairly and communicating with them in a clear way that allows them to make properly informed decisions; and
  • is open and co-operative with the GC as the regulator.

The industry is urged to look at this document, to learn lessons from the examples set out in it and to collaborate to achieve best practice.

This is the first time that the GC has published a review of its enforcement work over the past year and the document focuses on enforcement work under the Gambling Act 2005 and does not cover the Gambling Commission Regulation of the National Lottery.

The message is very clear.  Licensees are on notice that a failure to adhere to the guidance in both this document and within the GC’s public decision notices may see the regulator bringing enforcement action more swiftly and with higher penalties, if the GC is of the view that lessons are not being learned or if the issue in question has been uncovered by the GC or another authority.

Similarly, operators can expect lesser penalties if they report the matter to the GC promptly, co-operate during the investigation and proactively look to rectify matters.

I would urge the industry to read this document and pay careful attention to it.

I have seen a recent increase in concerns over “bottomless brunches” or “bottomless prosecco” promotions at a number of licensed premises. This resulted in a recent case where the Police were threatening to prosecute an operator client of mine for breach of a mandatory condition. However, these were quality premises, offering food with the promotion, with no suggestion of any negative impact from what had become a popular attraction. The premises were well managed, the promotion was well supervised and there had been no reports of drunkenness as a result of the promotion. We entered into a long series of discussions with the Police who were very uncomfortable about the bottomless brunch. We helped the operator draft a guidance document for all staff to be trained on how to manage the promotion and finally the Police accepted that this was not an irresponsible promotion.

Where are we then with how irresponsible promotions are defined and should be avoided by operators? The principle of an irresponsible promotion was introduced into licensing legislation through the mandatory conditions attached to all premises licences which authorise the sale of alcohol.

The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 (“the 2010 Order”) set out five new conditions that apply to all premises in England and Wales authorised to supply alcohol under a premises licence or club premises certificate. The first three of these conditions came into force on 6 April 2010. This included the condition dealing with irresponsible promotions.

The Home Office issued a specific Guidance document in 2014 which helps with understanding the reasoning behind these conditions and this can be found at the link below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/350507/2014-08-29_MC_Guidance_v1_0.pdf

The relevant sections of the Guidance document state as follows:

The 2014 Order states that the responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotion, as listed below, where that promotion is carried on for the purpose of encouraging the sale of alcohol on the premises.

Drinking games

This includes any game or activity that requires or encourages (or is designed to require or encourage) individuals to drink a quantity of alcohol within a time limit, or to drink as much as possible. This does not include “drinking up time”, shortly before the end of licensed hours.

The application of this prohibition is not subject to a judgement of risk, and so any game or activity that falls within it would be in breach of the condition.

Examples of this type of activity include drinking relay races and drinking challenges based on quantity.

Provision of alcohol free or for a fixed or discounted fee. This prohibits the provision of an unlimited or unspecified quantity of alcohol for free or for a fixed or discounted fee if there is a significant risk that such provision would undermine a licensing objective.

Rewards for consumption of alcohol

The new conditions ban the provision of free or discounted alcohol or any other thing as a prize to encourage or reward the consumption of alcohol over a period of 24 hours or less if there is a significant risk that such provision would undermine a licensing objective.

‘Significant risk’

The application of these prohibitions is subject to an assessment in any case about whether the activity in question would give rise to a significant risk of breaching one or more of the four licensing objectives:

  • The prevention of crime and disorder;
  • Public safety;
  • The prevention of public nuisance; and
  • The protection of children from harm.

Factors that may be considered when deciding if a promotion is irresponsible may include:

  • Type of promotion:

o How big is the discount?

o For how long does the discount apply?

  • Potential customers:

o Is there likely to be a significant increase in the number of customers?

o What is the profile of the customer base?

  • Type of premises:

o Is it a high-volume vertical drinking establishment or a community pub?

  • History of premises:

o Have previous promotions been handled responsibly?

o Has the licence been reviewed recently?

o Have sufficient security measures been taken for any potential increase in the number of customers?

If there is any doubt as to whether the promotion the operator is planning to run falls foul of this new mandatory condition, The Home Office strongly recommends that the operator discusses its proposals with its local licensing authority and/or police before running the promotion.

So the Guidance is pretty helpful in setting out what the Home Office believes are factors which will indicate whether the promotions are irresponsible. This is a judgement call. It does not mean that, per se, a bottomless brunch or prosecco hour is automatically irresponsible. The criteria above, if followed, can ensure there is not a “significant risk” to the licensing objectives being compromised and therefore the promotion would be legitimate and permissible.

The most recent version of the S182 Guidance also deals with the issue.

Para 10.39 states:

Under this condition, the “responsible person” (defined in the 2003 Act as the holder of a premises licence, designated premises supervisor, a person aged 18 or over who is authorised to allow the sale or supply of alcohol by an under 18 or a member or officer of a club present on the club premises who can oversee the supply of alcohol) should be able to demonstrate that they have ensured that staff do not carry out, arrange or participate in any irresponsible promotions. An irresponsible promotion is one that fits one of the descriptions below (or is substantially similar), is carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises. The aim of the condition is to prohibit or restrict promotions which encourage people to drink more than they might ordinarily do and in a manner which undermines the licensing objectives.

Drinking games

10.40 Drinking games which require or encourage individuals to drink a quantity of alcohol within a time limit, or drink as much alcohol as possible within a time limit or otherwise, are prohibited. For example, this may include organised ‘drink downing’ competitions. This would not prevent the responsible person from requiring all drinks to be consumed or abandoned at, or before, the closing time of the premises. Nor does it necessarily prohibit ‘happy hours’ as long as these are not designed to encourage individuals to drink excessively or rapidly.

Large quantities of alcohol for free or a fixed price

10.41 Irresponsible promotions can include the provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted price, where there is a significant risk that such a promotion would undermine one or more of the licensing objectives. This includes alcohol provided to the public or to a group defined by a particular characteristic, for example, a promotion which offers women free drinks before a certain time or “all you can drink for £10”. Promotions can be designed with a particular group in mind (for example, over 65s). A common sense approach is encouraged, which may include specifying the quantity of alcohol included in it or not targeting a group which could become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption.

Prizes and rewards

10.42 The sale, supply or provision of free or discounted alcohol or any other item as a prize to encourage or reward the purchase and consumption of alcohol can be within the definition of an irresponsible promotion, where there is a significant risk that such a promotion would undermine one or more of the licensing objectives. This may include promotions under which free or discounted alcohol is offered as a part of the sale of alcohol, for example, “Buy one and get two free” and “Buy one cocktail and get a second cocktail for 25p”. This includes promotions which involve the provision of free or discounted alcohol within the same 24 hour period.

So the original Guidance and the most recent Statutory Guidance is particularly helpful. If properly managed and supervised, then these are nor irresponsible promotions. The key phrase from the Guidance is perhaps, “A common sense approach is encouraged, which may include specifying the quantity of alcohol included in it or not targeting a group which could become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption.”

So, think it through. Plan ahead. Advertise carefully. Have a training and supervision plan prepared. Make sure what you are doing does not pose a significant risk to the licensing objectives and everything should be fine. Should you encounter any difficulties as an operator or an enforcement agency, then do not hesitate to contact me to discuss the issues that have arisen.