The 4th edition, as with previous editions, aims to provide a comprehensive and authoritative guide to licensing law, with a detailed exposition and contextual analysis of the legal provisions governing the licensing of alcohol and entertainment under the Licensing Act 2003. It encompasses the legislative and decision-making framework of the Act; the various forms of authorisation for licensable activities (premises licences, club premises certificates, temporary event notices, Part 5A notices and personal licences); licence and certificate conditions; and enforcement and appeals. It also contains a chapter examining compatibility of the 2003 Act and decisions made under it with the European Convention on Human Rights.

The new edition, building on the highly acclaimed previous three editions, has been fully updated and revised. It includes subsequent legislative changes and up to date case law decisions. New additions to this edition include:

  • legislative changes introduced by the Licensing Act 2003 (Early Morning Alcohol Restriction Orders) Regulations 2012, the Late Night Levy (Application and Administration) Regulations 2012, the Late Night Levy (Expenses, Exemptions and Reductions) Regulations 2012, the Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013, the Legislative Reform (Entertainment Licensing) Order 2014, the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2014, the Anti-Social Behaviour, Crime and Policing Act 2014, the Deregulation Act 2015, the Licensing Act 2003 (Late Night Refreshment) Regulations 2015, the Immigration Act 2016 and the Policing and Crime Act 2017;
  • amendments to existing regulations and orders, and the April 2017 version of Secretary of State’s Statutory Guidance;
  • important case law decisions on a range of areas;
  • coverage of new aspects of licensing control, including permitted sales of alcohol under a Part 5A notice where community event conditions or ancillary business sales conditions are met, and the issuing of illegal working closure notices and illegal working compliance orders; and
  • revised and extended sections on a number of areas, most notably in Chapter 11 on closure powers, early morning alcohol restriction orders and a late night levy.

The 4th edition is essential reading for all local authorities, magistrates’ courts, legal advisors, licensing policy advisors, operators and the police as well as those applying for licences and other forms of authorisation.

Andy Woods and I were walking to Clerkenwell for meetings on the day after the Grenfell Tower fire. It hit us both pretty dramatically as we were walking through central London to think that, only four miles away from where we were, the terrible scenes at the Tower were unfolding. It’s very easy to take for granted, when walking around London, what might be happening outside your own sphere of activity. This feeling was underlined the following day, when I noticed the anti-tank blocks that had been placed on Waterloo Bridge, as I was walking over to Waterloo Station.

It was only when we were having a meeting with one of our most significant clients, fabric, that Andy and I started to realise the huge impact that the fire and terrorist activities were having on licensed premises. The guys at fabric were telling me that they have had 24 hour, 7 days a week security at the premises ever since the Bali bombing, and are acutely conscious that they provide a potential target for the ongoing terrorist threat. This is not something that operators of mine and Andy have had to deal with until relatively recently. It brought this into sharp focus when I looked at the operating manual for fabric and saw the security measures that have been put in place, not just for trading nights, but to ensure that the premises are maintained as a safe environment.

I was then talking to the managing director of Arc Inspirations, Martin Wolstencroft, and he was telling me of the profound effect the Manchester bomb had had on their staff. Their Banyan premises are very close to the site of the Arena bombing and the immediate aftermath was felt first hand by their fantastic staff. Martin and Anni were on the way over to give their staff the support they needed after dealing with circumstances they would have never envisaged having to deal with until that night. I know that Anna’s clients at the Manchester235 Casino also helped many of the walking wounded who ended up at their premises as they fled that attack.

We had already been discussing how we were going to provide our clients with additional services around compliance, risk assessments and regulatory issues and again this was brought into sharp focus by the Grenfell Tower fire. James and I had a meeting with Chris Horner of Horner Salus to see how we could progress our relationship in these ever increasingly trying times. Horner Salus (www.hornersalus.com) and Woods Whur have worked together to ensure fabric achieved their ISO benchmarking very quickly last year. We were delighted with the speed that Chris Horner and his team turned around the instructions at a critical time for the fabric appeal. In addition we worked with them for the licensing of the Printworks at the former Daily Mail/Evening Standard offices and printworks at Canada Water in South London. Chris and his team prepared all of the event safety, fire safety and other regulatory policies for the Printworks, which helped the process no end in securing a premises licence for this fantastic new addition to the London entertainment scene. We have found that the quality of the work that they carry out is so high that we are delighted to have now entered into a strategic relationship with them to assist us in helping our clients by providing a consultancy service for these key areas of due diligence and compliance.

We really cannot stress how important it is that these issues are given serious weight. I understand that budgets can sometimes be tight, but it is our experience that the cost of rectifying breaches, dealing with investigations, fighting prosecutions and facing potentially huge financial penalties is always higher than getting the systems in place from the outset.

This was emphasised again when I had our quarterly catch-up meeting with Innpacked in Bournemouth (www.innpacked.com). Innpacked and Woods Whur have been in a strong relationship now for well over eighteen months after we decided to link in with them to provide training for our clients. Prior to that I had held accreditations for Woods Whur with BIIAB and Highfield Awarding Body. We felt that we were better placed having a relationship with Innpacked, who could provide the service much more cost effectively for us than we can. The real benefit for us is that I now get to work with Ian, Kat, David and Kelli which is a huge bonus as they are all fabulous people and catch-up meetings usually end up with a good healthy social! Many of our clients have now moved over to Innpacked to deliver their training but I was reminded this week by Ian and Kat that their capacity is far greater than just licensing training: they can also assist with a consultancy approach to risk assessments and a full suite of qualifications around health and safety, first aid and so on.

James Thompson and I are really pleased that we have this strength in depth through our relationship with Horner Salus and Innpacked to deal with often forgotten areas of regulatory compliance. We will be looking to our services in this sector and will be looking to hold a seminar later in the autumn.

One horror story came to us this week, when we were told that, upon a multi-million pound conversion of a large, almost derelict, building into a multi-operator leisure site, the developer had not put a fire alarm system in for the rebuild and fit out period. They didn’t believe this was necessary even though they had a significant number of staff on site and this had to be rectified very quickly!

The gambling industry is always seeking to develop innovative products, which change the way in which customers can gamble. Who would have thought, when Paddy and I started representing betting clients in 1990, that betting terminal machines allowing customers to bet at fixed odds would be become an integral part of all betting shops in the UK and would represent half, if not more, of a betting shop’s turnover? Who would have thought, at that stage, that there would be so many websites available enabling customers to gamble and that online gambling would have such a significant turnover?

Hand-held devices are common now in many gambling establishments, as are self-service terminals, and questions have arisen lately as to whether, in certain circumstances, the use of a hand-held terminal (such as a smartphone) in a betting office is covered by an ancillary remote operating licence, that licence being ancillary to the non-remote operating licence that allows the operator to apply for a premises licence and to trade at that site. The answer to the question can be found in the Gambling (Operating Licence and Single Machine Permit Fees) Regulations 2017 and in particular, in Regulation 16.

Regulation 16 confirms that an ancillary remote operating licence for a betting shop can be obtained by the holder of a non-remote operating licence as long as the remote operating licence authorises the licensee to provide facilities for betting by means of a machine, other than a gaming machine, used for the purpose of making or accepting bets on premises in which there is a betting premises licence, or in circumstances in which each bet made or accepted under the licence occurs by means of a telephone or by email and the arrangements for each bet are provided, operated or administered by an individual. There are also limits on the annual gross gambling yield which the operator may derive from remote gambling.

The practical effect of Regulation 16 is to ensure that any bet placed via remote means is placed with the actual shop and that the arrangements for those bets are provided, operated or administered by an individual (presumably within the shop in question) which, in practice, means that the bets need to be processed manually by the licensed bookmaker on site.

The Regulations also cover bet receipt terminals (self-service betting terminals).

If, therefore, a customer in a betting shop is provided with software which can be downloaded on to their own portable devices to participate in remote gambling, it is covered by an ancillary remote operating licence in the above circumstances, but not if the customer can use the software to gamble on other sites or on a general website where the remote bets are not processed at the betting office.

It has certainly been an exciting few weeks at Woods Whur with James Thompson and Vinnie Schumacher joining us in May. James gave us all a very entertaining presentation on his general practice which includes a huge range of work including: food safety, crisis management, corporate manslaughter, health and safety, environmental crime and compliance, business immigration and consumer protection/trading standards. I should of course say that Vinnie also gave us an interesting presentation on his time as a young chap in Wellington, New Zealand!

Spending time with James has been a good reminder to us all on the importance of risk assessments and written policies. I have represented many clients over the years and defending many clients both in respect of licensing reviews and occasionally heath and safety and other general regulatory matters and I constantly remind clients that risk assessments must be more than a paper exercise and must be taken seriously. It is absolutely essential for all operators to have a working up to date practice manual on site which covers general risk assessments and crisis management.

Paddy and I had clients who operated premises very close to the Manchester Arena and last week’s terrible events served us a reminder to all of the importance not only of having written policies and risk assessments but implementing them and ensuring that staff understand how to deal with certain situations and how to try and prevent certain situations. If you have a written policy/risk assessment that you ID everybody who doesn’t look over 21 then ensure staff comply with the policy and ensure staff understand the reasoning behind the policy. If you have a written policy/risk assessment that requires kitchen tops to be cleaned, corridors to be kept clear of rubbish, staff to be alert to the dangers of drug dealers then do not just keep these documents in a lever arch file hidden in the office. It is necessary to have regular refresher training sessions with staff on going working practice and risk assessments and to emphasise the fact that these risk assessments are written so as to protect the public and the staff from risks.

As part of our annual review meeting on the 24 May, I reminded all of our staff of our risk assessments and policies which included a 10 minute section on anti-money laundering. It is not the most exciting topic but I am pleased to say that all staff took note of the “red flag indicators” of anti-money laundering and understood the reason why we have to be alert to money laundering and to ensure that we carry out the necessary checks. It is not something that was invented to create additional paperwork. Risk assessments and policies are there for a reason.

Paddy and I have had some interesting discussions with James with regard to the types of cases that he has dealt with and James has very kindly offered to give a free training session to any clients (or in fact anybody reading this newsletter) on the general rules for regulatory control and risk assessments. In 2017, there is simply no excuse now for operators not to have policies and procedures in place and for staff not to fully understand these policies and procedures and if anybody wants any further assistance on this topic, they should either contact me or James (james@woodswhur.co.uk).

Can you afford it?

Posted by Woods Whur | Regulatory

The introduction of the sentencing guidelines for health and safety, food safety and corporate manslaughter offences last year has resulted in previously unseen increases in fines handed down by the Courts for those in breach. These sentences are likely to become the norm, rather than the exception.

The guidelines, which create a nine-step process for Courts in deciding on sentences, now clearly and directly relate an organisation’s turnover or individual’s income to the level of fine to be imposed.

By way of example, organisations with a turnover of £50 million per year or over can potentially be exposed to £10 million fine or greater, in relation to corporate manslaughter. Even smaller organisations, where turnover does not exceed £2 million per year, can still be exposed to fines measured in £100,000s.

Anyone watching or reading the news in the past year cannot fail to have seen fines handed down by the Courts to significant businesses in the leisure industry, such as £5 million to Merlin Entertainment for the accident at Alton Towers. When preparing this article, I noticed reports of several small operators being fined over £100,000 as a punishment for offences.

The introduction of the guidelines has produced some troubling statistics for those who may face a regulatory prosecution. In the last 12 months, businesses within the leisure sector alone have paid fines of over £7 million.

Health and safety prosecutions in 2015, prior to the introduction of the guidance, showed an average fine of just under £70,000 per case, whilst the figure for 2016, when the guidelines became applicable, shows an average fine of just under £250,000.

Financial penalties for a business are not the only redress available to the Courts, and for individuals prosecuted under the same legislation, imprisonment, together with financial penalties and other sentencing options, are available. There has been a number of cases with those persons involved in health and safety failings being imprisoned since the introduction of the guidelines, and this undoubtedly is set to continue.

The message is clear: the introduction of the guidelines has made the direct costs of a prosecution so great that the viability of some businesses and the liberty of those involved in the management of them might well be affected. It is an area of your operations that you cannot afford to ignore, quite literally at your cost.

I can only recommend that if facing any regulatory investigation it is imperative to seek specialist advice at the earliest opportunity. We can often assist in ensuring that an investigation is dealt with in such away to avoid prosecution. If this can not be avoided we can help to prepare a robust defence to any subsequent prosecution. In the worse case scenario we can help to ensure that a structured mitigation is put in place to reduce the impact of these increases in sentencing powers.

Please do not hesitate to get in touch with me at james@woodswhur.co.uk

Andy and I started to analyse our business closely last October as we celebrated our 5th Birthday at Woods Whur, and prepared our next 5 year business plan. Anna Mathias joining us in 2015 had given us the opportunity to invest in a London presence and, importantly, Anna has grown our gambling practice into areas in which we had not previously had exposure. We saw this as a key success in the five years since we set up Woods Whur and set to thinking of how we could replicate that success.

One of the key shifts in our workload has been the amount of regulatory enforcement advice and representation we have been seeing in the leisure sector. We are seeing far more regulatory control and prosecution across all of the sectors where we advise clients: not just the alcohol and entertainment sector, but the gambling sector too, as the Gambling Commission started to show its teeth against those they thought infringed regulation.

Andy, Anna and I have strong practical experience of advising and representing in regulatory matters, but we felt that the introduction of a specialist Partner level lawyer and support team was vital to the development of Woods Whur. We also had a look at our specialist competition and felt that we could add more value to our existing clients and become stronger in marketing to new clients, while stealing a march on the opposition!

It is all well and good to have that aspiration but putting this into practice was going to be harder than coming up with the idea. We were helped by Tony Brooke of Florit Brooke. Tony understood our requirements and introduced James Thompson and Vinnie Schumacher separately to me. Once Andy and I had met them both we could see that their aspirations were identical to ours and that their dedication to client care mirrored what we believe in.

James is highly rated by Chambers 2016 and has been lauded as a Recommended Lawyer by the Legal 500 for 2016 for health and safety and regulatory law. He joins us from International Law Firm, Clyde and Co, to be our Head of Regulatory Law. This sees Woods Whur set up a specialist department to deal with all aspects of regulatory, health and safety and food safety law. Vinnie joins us to support James and we have also brought in Sarah Griffiths to support them both in our administration team. Vinnie qualified as a Barrister and Solicitor in New Zealand in March 2014 and worked at the largest law firm in New Zealand, Simpson Grierson, where he was actively involved in the Commercial Property and Commercial Litigation Teams. Vinnie gained significant experience representing commercial clients, with exposure to Simpson Grierson’s Blue Chip client base.

James is a specialist in the field of corporate crime, dealing with matters ranging from advising directors accused of manslaughter to assisting organisations faced with high profile and complex inquests. James has particular expertise in healthcare, retail and industry, and is a Solicitor Advocate who conducts a significant amount of his own advocacy.

James specialises in all aspects of criminal regulatory law, in particular health and safety law, and his client base covers the breadth of the public and private sectors, from retail and education to chemicals and manufacturing. He has extensive experience advising public and private healthcare providers on health and safety and regulatory compliance.

This was very exciting for us, as we got to discuss in depth where regulatory enforcement was going. We thought that his skill set was hugely important for us to be able to offer to our client base. Two late night operator clients of ours have already sought out his advice and he is undertaking some high end representation for them. We have already been approached by one of our public sector clients in relation to food safety advice and prosecutions and can only see the demand for our services growing.

James highlights in his article for this edition of our Newsletter the massive impact on our clients that the recent changes in the sentencing guidelines for health and safety, food safety and corporate manslaughter offences could well have. Those changes have resulted in previously unseen increases in fines handed down by the Courts for those in breach. These sentences are likely to become the norm, rather than the exception and, as James stresses, it is critically important to get specialist advice very early in the process.

Andy and I believe this gives us the opportunity to add significant value to our client base as we have now created this specialist department within the firm. The other benefit is that we have been able to open up a presence in Newcastle. This is a great commercial and leisure market where we are already strong, but now aim to grow our client base.

Of critical importance to Andy and me is the endorsement of us, given independently, that “the client is at the heart of everything they do”. We genuinely believe that we have enhanced our status with these appointments…and the other benefit is they are great people who have slotted into Woods Whur as if they have always been here.

The Chief Executive of the Gambling Commission, Sarah Harrison, spoke at the Lotteries Council Annual Conference last week and took the opportunity to reprise some of the themes that she has focussed upon in addresses to other sectors of the gambling industry during what will soon be her first 20 months in office.

Ms Harrison stressed the importance of delivering effective regulation in the public interest and the need to build public and consumer trust by ensuring fairness, openness and market integrity, in the interests of long term stability and business growth. This echoes what she has said to operators in other sectors of the industry, namely that consumer confidence inspires growth.

She took the opportunity to set out for her audience, composed of those involved in society lotteries, who are a wide range of charities, sporting associations and their commercial partners, her snapshot of the current gambling market landscape, the Commission’s priorities and the perceived issues in terms of regulating lotteries.

In terms of the market landscape, she pointed to the recent decline in participation in gambling generally, principally driven by a fall in participation in the National Lottery, but noted that nevertheless, approximately half of the British population have gambled in the last month, with some 12% gambling via society lotteries. She also underlined the massive increase in recent times in mobile and tablet gambling, which has increased from 13% to 18% amongst society lottery participants in the year 2015 to 2016. This is set in the context of a shift to remote play generally, with those participating in remote lotteries more than doubling over the last 5 years, from 15.5% in 2013 to 38.4% in 2016, with participation in non-remote lotteries falling at the same time, from 88.1% to 63.3% over the same period.

The Commission currently licences 178 remote lottery operators and just under 200 ancillary remote operators, albeit the move towards remote participation may be slightly slower than that being seen in other sectors of the gambling industry. However, it is interesting to note that participation in lotteries via tablet and similar devices is growing across age brackets, now being as prevalent amongst those aged 35 to 54 as it is for players aged 18 to 34, something that will not escape lottery operators’ notice, given the demographic of typical participants.

Ms Harrison also pointed out the increasing proportion of players who are attracted to gambling generally by advertising on television and social media, including, somewhat worryingly, those aged between 11 and 15 years, of whom, it has recently being shown, 9% have played gambling-style games at one time or another. Indeed, there is an increased focus by lotteries on advertising on television and social media, with some lottery operators using major television advertising campaigns to recruit players. Of those gambling online currently, almost half were prompted to do so by television campaigns, with 21% being attracted via social media.

The lottery industry statistics given by Ms Harrison were interesting – the Commission currently licences almost 500 society lotteries, and that figure does not include the smaller lotteries that are authorised by way of a registration with a Local Authority. The Commission also regulates 38 External Lottery Managers “ELMs”. Yet only 10 Local Authorities, who are entitled to promote lotteries in order to raise funds to be applied to the discharge of their statutory duties, are licensed by the Commission. This led me to wonder why this last figure is so low, and why so few Local Authorities have taken up this opportunity. This may be an area for potential future growth, however it cannot be denied that some Local Authorities might be put off by difficulties in making the figures work in order to comply with the various financial requirements and limits imposed by lottery law; in addition, it is a commonly held view that the work of Local Authorities is not a popular cause in the same way that the work done by other, charitable, organisations is – thinks criticisms surrounding potholes and refuse collections!

Ms Harrison quite properly lauded the significant contribution to good causes made by the society lotteries sector, with £480m worth of lottery tickets having been sold in the year ending March 2016, a 10% increase as against 2005 and an increase of well over 100% on the last 5 years. This is a tremendously impressive achievement. In addition, society lotteries give, on average, 43% of those ticket sales, or circa £206m in the last year for which figures are available, to be applied directly to the good causes they support.

Ms Harrison pointed to the incredible diversity amongst the lotteries sector in terms of the scale and types of products available and the causes that they support. That diversity continues to increase, with one lottery operator having successfully teamed up with a well-known high street bookmaker to sell scratchcards, and one ELM considering introducing a “fast-draw” lottery. Ms Harrison sees this diversity as an opportunity for growth, but she also stressed that it presents issues in terms of regulation, particularly against the backdrop of falling consumer confidence, which has declined, as shown in recent figures, in relation to the gambling industry generally, by almost half, with public trust in fairness dropping from 61% to 38% between 2008 and 2016.

Turning to the Commission’s priorities, in common with other speeches given in recent times and in line with the Commission’s Plan for Consumers published on 3 October 2016, Ms Harrison spoke of the core Commission priority of putting consumers at the heart of everything it does. She pointed out that the principles underlying the ambition apply equally to the society lotteries and National Lottery sector, such that consumers:

  • easily understand the product and are clear on the terms, such as the contribution to good causes;
  • are confident in knowing their rights and having access to information to help informed decisions;
  • appreciate the risk of losing, as well as winning;
  • have access to tools to help keep play safe and reduce risk of harm; and
  • know where to go, for example with complaints, if things go wrong.

In exchange for the relatively liberal regulation in this country of gambling in general and lotteries in particular, Ms Harrison made it clear that the Commission expects operators to harness the same sort of innovation they use to drive business growth to ensure that they protect and empower consumers. She urged operators to focus more on consumers and less on the regulator. This, she said, means not just meeting, but beating, regulatory standards and raising standards across the board.

Ms Harrison also referred to the main tenets of the Commission’s 2017 to 2018 Business Plan, which sets out other priorities which are relevant to lotteries. These include tackling unfair advertising and terms and conditions. Lottery operators must lodge any new lottery terms and conditions with the Commission at least 28 days before lottery tickets go on sale in reliance upon them, and they must also notify players of any material change to their terms and conditions. In my experience, these requirements frequently give rise to doubt with the first, at least, often being missed. Lottery operators would do well to review the position within their own organisation insofar as terms and conditions are concerned, in order to ensure that they are compliant.

Ms Harrison also reminded Conference delegates of the intention, set out in the Business Plan, that the Commission will, in future, impose tougher sanctions in cases of persistent or systemic regulatory failures, but will also offer reductions in sanctions for those operators who recognise their failures quickly and take steps to put things right for consumers.

She also pointed to the review which is currently being undertaken by the Commission of Alternative Dispute Resolution (“ADR”) Entities, and this includes considering the role of IBAS, which is the ADR for the lottery sector. With complaints to the Commission concerning gambling operators and transactions having risen by 300% over the last 2 years, the Commission is looking at reducing the number of approved ADRs, in order to ensure consistency.

Ms Harrison’s speech also referred to the Commission’s relatively new requirement, that larger operators provide it with an Annual Assurance Statement (“AAS”). This is composed of an annual review of compliance with licensing obligations by an operator, the lessons learnt in the past year, and how the operator will build regulatory compliance for the coming year. It involves a commitment at Board level to focus on raising standards. In the world of lotteries, the requirement to lodge an AAS currently applies to the People’s Postcode Lottery and to the Health Lottery.

Ms Harrison also took this opportunity to announce that work is about to commence on the next National Lottery licence competition. Even though the award of the contract is not due to take place until 2023, preparation is starting now. She also mentioned that the Commission will be advising the new Government on its gambling review, following the 2015 Select Committee Report. This review touches upon issues which affect the lottery sector, particularly the very much desired increase to financial limits applying to large society lotteries licensed by the Commission, and those within the sector will await the outcome of that review with interest.

Ms Harrison then turned to consider the issues perceived by the Commission to be of concern in regulating the society lottery sector. She gave a very welcome acknowledgment that the sector occupies a unique place in the gambling industry, agreeing that society lotteries exist, first and foremost, as a means of fundraising to enhance and enrich aspects of British public life. Ms Harrison also made it clear that the Commission understands that the main motivation for many participants in society lotteries is supporting the relevant good cause. She also lauded the strong and collaborative relationship that has been built up between those in the sector and the Commission over a number of years. Nevertheless, she was at pains to point out that lotteries remain a form of gambling that not only requires regulation, but also presents unique challenges that are brought about by virtue of their unique position.

In what was probably the most significant part of her address as far as the audience was concerned, Ms Harrison covered issues surrounding transparency in lotteries. She said that, given their role in generating money for good causes, the motivation of players to participate and the trust that the public put in society lotteries to deliver, there is a particularly high benchmark relating to the transparency of terms and conditions and, in particular, the contributions that society lotteries make to good causes.

Ms Harrison said that the Commission agrees with the recommendation of the Select Committee that all lotteries should be more transparent. She went on to say that the Commission will be considering whether further regulatory requirements are necessary in relation to obliging society lotteries to declare the percentage that they give to the good cause which they support. She stopped short of declaring that this will be a legal requirement but in my view, this seems to be a “done deal”. Given that the sector gives an average of 43% (taken against the statutory minimum of 20%) directly to good causes, I should imagine that this move will be welcomed by most, although perhaps not some, operators.

Ms Harrison also highlighted branded or umbrella lottery schemes, where multiple lotteries are promoted under a single brand. She stressed the need for ELM’s and societies to make it abundantly clear to consumers which society lottery they are being invited to participate in. Again, she said that the Commission is looking to bring in new regulatory requirements in this respect. Any new measures will first be the subject of public consultation.

The other key issue identified by Ms Harrison was the rapid evolution in the range of lottery products available with, for example, “instant style” products being becoming ever more popular. She said that this involves a blurring of the lines between various gambling products: society lotteries, the National lottery and commercial gambling, and that this “changes the hierarchy of harm”, that is to say that, as they evolve, society lotteries are capable of moving from their current position where they are seen as low risk to a position where additional harm from participation is possible, as they evolve towards more mainstream gambling products. Ms Harrison signalled that the Commission will be looking into this issue, but that it also expects operators to consider the implications of any new products that they introduce or channels that they use. Although society lotteries generally are still considered as low risk by the Commission from a problem gambling point of view, it expects operators to continue to promote responsible participation as the market evolves and products change.

For me, one of the big “takeaways” of this speech was the recognition on Ms Harrison’s part that society lotteries do operate in a different environment and with different objects, as compared to other sectors of the gambling industry. With this in mind, Ms Harrison signalled the Commission’s intention to relax certain aspects of the Remote Technical Standards insofar as they relate to society lotteries, which already benefit from a more “light touch” approach than that applying to other sectors of the gambling industry. Ms Harrison also announced that the Commission intends to relax the automated self-exclusion requirement applying to society lotteries. This was particularly gratifying for me as I flagged up with the Commission some time ago the fact that it appears unnecessary for these requirements to apply to remote society lotteries that do not offer “instant-win” products. These changes will doubtless form the subject of public consultation in due course. I will report again, once further details are known.

This week I represented a client who had their premises licence reviewed in an attempt to remove the authorisation for boxing and wrestling. They had held three “white-collar boxing” events at which there had been issues, the last one leading to the mass evacuation of the premises and a near-riot. White-collar boxing is unregulated and attracts a crowd which can be difficult to manage. There is little control on who gets the tickets and it can get pretty messy when decisions go against particular boxers. This happened in the case I was involved with, where the trouble started in the ring at the end of the fight and in seconds had spread to the rest of the premises, with a huge police presence needed to quell the trouble. The CCTV footage did not make for good viewing and we had to accept that, for the most part, the SIA doormen were ineffectual.

The Police, on the back of two similar instances of trouble, asked the operator to volunteer giving up the authorisation. The premises licence holder, however, pointed to the fact that they had not had any issues when offering fully professionally-promoted boxing events, and offered to relinquish permission for white-collar boxing and amateur boxing but still wanted to offer professional boxing events as they are remunerative for the club and there was no evidence of any issues associated with them.

The Police were not happy with this as a solution and wanted the premises to have a clear break from any form of boxing for a “dampening down” period of at least a year. My clients didn’t want to test the relationship with the police but after considerable discussion instructed me to offer conditions but retain the professional boxing authorisation.

So, horrendous public disorder and violence at white-collar boxing, but no evidence of issues at professional boxing events. What does the S182 Guidance document say on reviews…anything helpful?

Para 11.20 is a good starting point:

“In deciding which of these powers to invoke, it is expected that licensing authorities should so far as possible seek to establish the cause or causes of the concerns that the representations identify. The remedial action taken should generally be directed at these causes and should always be no more than an appropriate and proportionate response to address the causes of concern that instigated the review.”

The police in their opening had stressed:

  • White-collar boxing events were the particular events which caused the issue;
  • There was no control over who received tickets;
  • It was a problematic audience who attended;
  • There were issues with the boxers;
  • Tickets were sold on the door so no assessment was made as to who was attending; and
  • Under 18 family members had attended.

So, that gave us something to go at, as we were offering to remove white-collar and amateur boxing.

This didn’t appease the police, but para 11.23 of the statutory Guidance helped us further:

“However, it will always be important that any detrimental financial impact that may result from a licensing authority’s decision is appropriate and proportionate to the promotion of the licensing objectives.”

The licensing sub-committee accepted our submissions that it would be disproportionate to remove the authorisation when there was no evidence that the professional boxing events had proved problematic previously. They did, however, give my clients a real lecture on the promotion of the licensing objectives and stressed the need to get things water-tight, moving forward.

There were some good learning points from this case:

  • Better and earlier communication with the police could have prevented the review;
  • Boxing is a real “hi-risk” event and should be preceded by thorough risk assessments. White-collar boxing and amateur boxing bring with them significant risks due to the identity of some of the boxers and their followers; and
  • Don’t let the tail wag the dog with door supervisors. Their anonymity when the problems happened at my clients’ venue was really worrying and indicative of a clear training need.

You really could not blame the police for bringing the review, as they are charged with ensuring that the crime and disorder licensing objective is promoted and that public safety is not compromised. I think that, with earlier instructions, we could have reached the conclusion we did by way of a minor variation, but the police were losing trust in the operator through lack of activity on its behalf.

The conditions attached to the licence were as follows:

  1. The premises licence holder shall not hold any white-collar or amateur boxing events. The only boxing/wrestling events which will be held at the premises will be professionally promoted events. The premises licence holder will give 28 days’ notice to the police of these events, ensuring that the full list of professional boxers fighting at the event is provided to the police.
  2. No persons under 18 to attend boxing events.
  3. No ticket sales on the day of the event.
  4. Tickets are to contain the name of the person attending the event.
  5. The DPS or a senior manager must be in attendance at boxing events.

Hopefully the warning of the committee chair will be “ringing” in my clients’ ears and we will not see further problems.

We are all by now accustomed to the general protocol at licensing hearings, which are usually discussions led by the Authority without cross-examination being permitted. In the early days of the Licensing Act 2003 there were many amongst us (myself included) who found it difficult to resist the burning temptation to try to cross-examine and challenge those on the other side. This irresistible urge was born out of fifteen years of the hustle and bustle of applications in the Magistrates’ Court with witnesses giving evidence on oath as in a criminal trial. Not only did an attempt to cross examine go against the Licensing Authority’s guidelines but in general it simply irked the councillors and put you on the back foot.

It became clear that those applications which would succeed and those representations which would succeed would be those which were based on evidence and not speculation or argument. Licensing Authorities always have to use a certain degree of speculation in decision-making by having to decide which evidence to prefer, so the obvious answer for those making applications or representations is to provide the licensing committee with all the necessary evidence.

This means reading the local Licensing Policy in detail, applying the relevant parts of the Section 182 Guidance and ensuring that any Operating Schedule submitted with the application deals with all necessary points.

I am still surprised by the standard of certain applications, submissions and cases in general that I witness as I travel around the country representing clients. Obviously these “surprising” cases are not on behalf of clients of Woods Whur! 

Any applicant who turns up to make an application for a new licence without understanding the local Licensing Policy or specific sections of the local policy relevant to the application site does not deserve to be granted a licence. Any applicant who does not understand the local area and put in place measures in the Operating Schedule to deal with any local issues should also not be granted a licence. Preparation, more than ever, is the key to succeeding in licensing applications and, by presenting the licensing committee with as much detailed evidence as possible, an applicant increases their chances of succeeding. There is nothing a local councillor would like better than to explain to an applicant why he or she knows the area much better than they.

The same has to be true in review applications brought against those operating with a premises licence. I have recently been involved in a case in which the police sought to revoke a premises licence or, in the alternative, ask for some fairly severe changes to it (over 21s only, a reduction in hours). The police did not comply with the Section 182 Guidance by notifying the applicant of their concerns and by giving the applicant the opportunity to put matters right before the review application was submitted. This immediately put the police on the back foot. The police did not engage with the applicant and did not want to discuss any proposals other than the complete revocation of the licence. The licensing police did not liaise with the local police force, who are out and about at night in the general area. We were able to obtain evidence from those officers who were patrolling the area at night as to the effectiveness of the management and the high standards of the door team. Quite remarkably, even after this evidence was disclosed to the police, those who were responsible for bringing the review did not change their approach. In addition, the police produced no up-to-date evidence of incidents at the premises, allowing the operator to confirm in evidence that there had been no incidents at the premises, which, although they may have had some teething problems, were now running successfully.

I don’t think I have ever seen a case in which the evidence was so one-sided and I was very surprised that the police continued with the case rather than work with the operator, who would quite happily have agreed some additional voluntary conditions to reflect the way in which the premises were now operating.

This is not a dig at the police as I have witnessed many cases including a high profile case in Westminster in January in which the police brought detailed evidence and presented a very thorough case (the other case I have been referring to is not in Westminster). If anything this article is a dig at those who appear before licensing committees without preparing a case correctly and without submitting evidence to deal with both live matters and local policy. None of this of course ever happens to those who instruct any of us at Woods Whur!

 

Andy and I were pleased when we were described by Chambers Directory as a licensing practice with a national presence. We have been deliberately careful in our expansion and the successful introduction of Anna Mathias and a London office has born fruit since she joined us in 2015. We are now delighted to announce that James Thompson will be joining us on Monday from Clyde & Co in Newcastle.

James is a specialist in the field of corporate crime, from dealing with directors accused of manslaughter to assisting organisations faced with high-profile and complex inquests. James has particular expertise in healthcare, retail and industry. James, like Andy and me, is a Solicitor Higher Rights Advocate, and from the moment we met him we realised that he shares the same client service principles as us.

This enables us to establish an office at Rotterdam House, 116 Quayside, Newcastle upon Tyne, NE1 3DY, which complements our Leeds and London office bases. More importantly, it broadens our client portfolio and our legal services offer to our existing clients.

James specialises in all aspects of criminal regulatory law, in particular health and safety law, and has full rights of audience, allowing him to appear in the Crown and Appeal Courts. He appears on a regular basis in the Magistrates’, Coroner’s and Crown Courts. James’s client base covers the breadth of the public and private sectors, from retail and education to chemicals and manufacturing. He has extensive experience advising public and private healthcare providers on health and safety and regulatory compliance.

He has extensive experience in dealing with all aspects of criminal regulatory proceedings brought against individuals and organisations, both in the public and private sectors. These proceedings have been brought by a variety of different agencies such as the HSE, police, Environment Agency and local authorities, to name but a few. He continues to represent numerous individuals and organisations accused of manslaughter and other serious offences. James has over 20 years’ experience from the police service in relation to the investigation of offences and has latterly prosecuted offences for government departments, statutory bodies and for various ports and airports. James has been highly rated by Chambers 2016 and has been lauded as a Recommended Lawyer by the Legal 500 2016, for health and safety matters.

“I am delighted to be joining Woods Whur to head up the Regulatory Department, dealing with all aspects of health and safety, food safety and general regulatory issues. It is an exciting time for me as I believe that Woods Whur gives me the perfect environment to give my existing clients the support they need. What is also clearly evident is the opportunity that this gives me to add value to Woods Whur’s existing client base. I feel it is a real win-win.”

We also have Vinnie Schumacher joining us next week. Vinnie qualified as a Barrister and Solicitor in New Zealand in March 2014 and worked at the largest law firm in New Zealand, Simpson Grierson, where he was actively involved in the Commercial Property and Commercial Litigation Teams. Vinnie gained significant experience representing commercial clients, with exposure to Simpson Grierson’s Blue Chip client base. He worked in a team on significant litigation cases and has a very strong academic background.

Vinnie moved to Leeds in March 2016 and was employed running his own case-load in a Contentious Trust and Estates Team before joining Woods Whur. Vinnie joins Woods Whur to support me in the Leeds market, Andy in the London market, Anna with some key gaming clients and James in the Regulatory team.

We are all delighted with these two new appointments and with the opening of our office in Newcastle. Along With Paul Holland based in East Yorkshire and Anna in London, we now feel that we are genuinely a Licensing and Regulatory Law Firm with a national reach.