Author: Woods Whur

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Recent pro-consumer measures affecting the Gambling Industry

The Gambling Commission (“GC”) published its Business Plan last year for April 2016 to March 2017, pledging to put consumers first and urging operators to do the same. This was hotly followed by its Consumer Plan, described as “a two-way conversation” in which the GC committed to putting consumers at the heart of everything it does, by, for example, making its publications more accessible and continuing to develop its Contact Centre responsiveness and service standards.

Two further recent developments that champion consumers need to be noted by the gambling industry – the publication by the Advertising Standards Authority (“ASA”) of Guidance for the sector on affiliate marketing, and the extension of the services of Resolver to assist consumers in managing complaints about gambling operators and their transactions.

The ASA Guidance was published on 21 July and a full copy may be found here: https://www.asa.org.uk/news/gambling-on-your-affiliates.html. The Guidance applies to non-broadcast affiliate marketing only and essentially emphasises to gambling operators that they bear “primary responsibility” to ensure that advertisements placed on their behalf comply with the Committee of Advertising Practice (“CAP”) Code. In effect, this means that they are entirely responsible for compliance, not simply with the general Chapter of the CAP Code prohibiting misleading, irresponsible or offensive advertising, but also with the specific Chapter of the Code relating to gambling, which may be found here: https://www.asa.org.uk/type/non_broadcast/code_section/16.html. Gambling advertisements must not, for example, suggest that a player’s personality, self-image or financial security are likely to improve via gambling. Operators should be aware that, if their affiliates do not act compliantly, they will bear sole, or at the very least joint, liability.

In the latest Guidance, the ASA highlights the requirement that operators ensure that their affiliates are not placing advertisements in a socially irresponsible way and, in particular, not targeting the underage, including on social media. This follows their 6 June Guidance on age-restricted advertisements online, a copy of which may be found here: https://www.asa.org.uk/asset/F0AB1553-1212-4106-8C6E6C0047FEBEBA/ That Guidance focussed on the fact that almost 9 in 10 children aged 5 to 15 go online, a large proportion of whom have their own social media profile. Against that backdrop, the ASA is keen to ensure that advertisements for age-restricted products, including gambling, do not reach an underage audience and expects advertisers to use all the data at their disposal, whether that be actively provided by users, inferred from their behaviour or based on information provided from their devices, to ensure that this does not happen.

The July Guidance also makes it clear that advertisements placed by affiliates must be readily identifiable as such, via sufficiently prominent labelling, and that any significant conditions or restrictions applying to promotions must be made clear and transparent. All terms and conditions must be clearly communicated, where to do otherwise might mislead the consumer.

Resolver is an online tool that enables consumers to track and manage any complaints that they might have about products or services. It already works with other key regulators such as the Financial Ombudsman, and is now working with the GC. The extension of Resolver to cover the gambling sector was announced in July.

The GC has shared information about the new Resolver product, whilst stressing that it is independent and not linked to it in any way. Full details, including a link to the Resolver website and FAQs, may be found here: http://www.gamblingcommission.gov.uk/news-action-and-statistics/news/2017/Consumers-can-use-Resolver-to-manage-their-gambling-complaints.aspx

Resolver has been available from 1 August. It is a free, independent, online tool for consumers which provides information about the issue the consumer wants to complain about, and advice and support on how to write emails and letters of complaint. Resolver is not an intermediary or Alternative Dispute Resolution (“ADR”) entity. It does not act on the consumer’s behalf but, instead, helps consumers to structure their complaint and to make informed decisions about the action to take.

This should, in turn, enable operators to deal with complaints more efficiently and to manage customer expectations. Resolver also enables customers to store all of the information about their complaint in one place, and acts as an email service. The GC expects operators to accept customer complaints sent via a Resolver email address, just as they would complaints sent from any other email address.

Despite the two entities being independent, the GC has collaborated with Resolver to develop the information that Resolver uses about gambling.

Resolver has now provided more details for operators, in particular on how the system will operate and on how operators can ensure that the appropriate information surrounding complaints reaches them. The full advice may be found here: http://www.resolving.uk/resolver-gambling-commission-team-up/

Resolver says that its website is designed to ensure the simple and effective management of complaints, for both consumers and companies. It also provides an escalation process to enable the parties to reach a satisfactory outcome. The escalation process applies both within a company and potentially to the GC, in appropriate cases.

Resolver is gradually adding gambling companies to its system, starting with the largest (a process that will take months), but does not expect an immediate influx of complaints about gambling, as it takes some time for consumers to become aware of its services.

Resolver stresses the importance of routeing complaints to the most appropriate part of an organisation in ensuring a quick and satisfactory outcome, so is encouraging operators to contact it with details of appropriate individuals, escalation contacts and ADR entity. These details may be sent to gambling@resolver.co.uk

It will be interesting to see what the uptake by consumers and operators alike of Resolver is, and the extent to which it will play a positive role in enabling consumers’ complaints about gambling – of which we are seeing an ever-increasing number – to be resolved speedily and to the satisfaction of all involved. It also remains to be seen whether the service will benefit or undermine operators, and we will report on this issue further in due course, as the scheme rolls out.

Should you have any queries about the recent moves to further the interests of consumers in gambling, please contact me on 07767782997 or at anna@www.woodswhur.co.uk.

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Immigration Act 2016 changes affecting licensed premises

One of the new areas that will be covered in the 4th edition of Manchester on Alcohol and Entertainment Licensing Law when it is published later this year –the book is currently at proof-reading stage, after which it will be ready to go to the printers – is changes made to the Licensing Act 2003 (2003 Act) by provisions in the Immigration Act 2016 (2016 Act) and powers contained in the 2016 Act that might affect premises having a premises licence or other authorisation under the 2003 Act. The latter includes a power in s 38 and Sched 6 for immigration officers to issue an illegal working closure notice (IWCN) in respect of any premises where an employer operating at the premises is employing an illegal worker and there has been a previous breach of illegal working legislation. The IWCN prohibits, for a period specified in the notice, access to the premises and paid or voluntary work being performed on the premises unless in either instance there is written authorisation from an immigration officer. The maximum period is normally 24 hours, although it can be 48 hours if the IWCN is issued by an immigration officer of at least the rank of immigration inspector. Paragraph 2(2)–(5) of Sched 6 provides:

(2) The maximum period that may be specified in an illegal working closure notice is 24 hours unless sub-paragraph (3) applies.
(3) The maximum period is 48 hours if the notice is issued by an immigration officer of at least the rank of immigration inspector.
(4) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.
(5) The period specified in an illegal working closure notice to which subparagraph (3) does not apply may be extended by up to 24 hours if an extension notice is issued by an officer of at least the rank of immigration inspector.

There is an element of uncertainty here in respect of the extent to which Christmas Day is to be disregarded and the following section is what the 4th edition will say on this matter.

It is clear from para 2(4) that Christmas Day is to be disregarded when calculating the

48 hour period mentioned in para 2(3) and thus an IWCN issued on the day before

Christmas might extend through Christmas Day and Boxing Day without exceeding

the 48 hour period. Less clear is whether Christmas Day is to be disregarded when an

extension notice is issued extending the period of up to 24 hours by a further period

of up to 24 hours (and the position is the same in respect of closure notices under s 76

of the ASBCPA 2014 – see 11.14.4 above). One view is that it ought not to be disregarded

because, although the period here might be 48 hours, the reference in para 2(4)

to disregarding Christmas Day seems to refer to the 48 hour period mentioned in para

2(3) i.e. an IWCN issued in the first instance for a period of up to 48 hours. This might

be reinforced by the fact that the provision in para 2(4) on disregarding Christmas day

precedes any reference to extending the period of up to 24 hours by a further period

of up to 24 hours, since this provision is contained in a later subparagraph, para 2(5).

On this view, focusing on the wording of para 2, Christmas Day will not be disregarded

but will be taken into account when an IWCN is issued for up to 24 hours on

the day before Christmas and the period is then subsequently extended. Another

view, based on a purposive interpretation of para 2(4), is that if Parliament intended

Christmas Day is to be disregarded when calculating a continuous 48 hour period (the

period specified in para 2(3)) it might reasonably be taken to have intended that it

should also be disregarded when calculating a cumulative 48 hour period (the period

specified in para 2(5)). The period is essentially the same in each instance and if

Christmas Day is to be disregarded in one instance it is difficult to see why it should

not be disregarded in the other. That said, it seems that Christmas Day is not to be

wholly disregarded, since there is no exclusion in para 2 of Christmas Day in respect

of an IWCN issued for a period of up to 24 hours. Such an IWCN might therefore

encompass part or all of Christmas Day, notwithstanding that the specimen IWCN in

Annex B of the IW Guidance appears to suggest to the contrary (‘This notice shall

cease to have effect immediately before [insert time 24 or 48 hours from time of issue

excluding Christmas Day] on [insert date] unless an extension notice is issued or the

court orders that it is to continue in force’). Although the two competing views seem

to be finely balanced and it is difficult to state a ‘better view’, it is submitted that the

balance is marginally tipped in favour of Christmas Day being disregarded under

para 2(4) only in respect of an IWCN issued in the first instance for a period of up to

48 hours. This view seems to accord with the meaning of ‘the period of 48 hours’ in

para 2(4) when taken in the context of para 2 as a whole and with Parliament not

intending, on the wording of para 2, that Christmas Day is to be disregarded in all

circumstances.

As you can see from the second sentence in the text above, the same point arises in respect of closure notices issued under s 76 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014), which have replaced the (now repealed) closure power provisions for identified premises that were contained in s 161-166 of the 2003 Act. This reflects the fact that the IWCN provisions in the 2016 Act were closely modelled on the closure notice provisions in the ASBCPA 2014 and, in consequence, the uncertainty in respect of Christmas Day is not confined to the ASBCPA 2014 but also extends to the 2016 Act!

© Colin Manchester

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NEWSFLASH! Woods Whur on shortlist for prestigious legal award

Andy and I are delighted to announce that we have been shortlisted in the “Best Niche Law Firm” Category of the Yorkshire Legal Awards.

We see it as a great accolade just to be nominated, and now await the awards dinner on 12th October to see if we come away with the top prize.

Woods Whur will be celebrating our 6th Birthday on the night of the dinner, which is lovely timing for us. We have seen significant growth in those 6 years and are delighted that we now have Anna Mathias, James Thompson, Vinnie Schumacher and Paul Holland in our team of lawyers. This has also meant that we have grown our national presence, with London and Newcastle becoming key areas for us to drive into. I will also be celebrating 18 years of working with Carole Collingwood in October, which is amazing. Carole heads the strongest administration team we have had, as we grow our national presence from our Leeds base. We have also seen the addition of significant new national clients this year: the Rank Group (Mecca Bingo, Grosvenor Casinos and Luda Bingo), and the Casual Dining Group (Bella Italia, Café Rouge and Belgo). Together with the new additions, we have seen many of our long-standing clients go from strength to strength, with new brands and new sites in Leeds, London and around the country.

Exciting times for all at Woods Whur.

Paddy

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NEWSFLASH: Gambling Commission consults on new licence conditions and codes of practice for the lotteries sector

The Gambling Commission (“GC”) is consulting on proposed changes to its Licence Conditions and Codes of Practice (“LCCP”) applying to the lotteries sector – both to society and local authority lottery operators and their commercial partners, External Lottery Manager (“ELMs”).

The proposals, which are out for consultation from 20 July to 30 September, are aimed at improving transparency for lottery players.

Full details, including how to respond to the Consultation and a template for doing so, are available here: http://www.gamblingcommission.gov.uk/news-action-and-statistics/Consultations/Open-consultations/Have-your-say-on-changes-to-society-lottery-codes-of-practice.aspx

The main proposed changes are to require all operators to publish annually the percentage of all lottery proceeds that go directly to the purpose of the society (the “good cause”) or to the purposes for which the local authority has power to incur expenditure, and to oblige those who promote lotteries as part of a branded lottery scheme to make it clearer to players the name of the society whose lottery they are participating in before they purchase a ticket.

Some of you may recall that, back in May, having listened to Sarah Harrison, CEO of the GC, deliver her keynote address to the Lotteries Council Annual Conference, I reported that these changes were afoot, and this Consultation should therefore come as no surprise. Any changes brought about as a result will come into force before April 2018.

The GC points out that the lotteries landscape has changed significantly since the Gambling Act came into force 10 years ago and that society lotteries now play a crucial role in supporting good causes in Great Britain. This Consultation takes on board various recommendations of the Culture, Media and Sport Select Committee when it looked at society lotteries in 2015 and proposes new Social Responsibility Code provisions, which have the force of Licence Conditions.

Whilst many society lottery schemes pay considerably more than the statutory minimum of 20% of proceeds to the good cause, some only pay the minimum and the GC believes it is reasonable to introduce a new Social Responsibility Code provision 4.3.1 obliging operators to make this information available to consumers, to enable them to make an informed choice on how to support charity. It is proposed to require this data in charities’ annual reports, on the lottery page of their websites or by “any other means appropriate to the size and scale of the organisation”.

In 2012, the GC published Guidance on branded, or “umbrella” lottery schemes and it has been engaging with the operators of such schemes since, in order to ensure that they are providing sufficient information to consumers to enable them to determine which society lottery they are participating in. The GC now proposes to beef these measures up by the introduction of a new Social Responsibility Code provision 4.3.2 requiring advertising and marketing to make clear that each draw is on behalf of separate identified societies and that the name of the brand is secondary to the name of the society, including on lottery tickets.

The Consultation also seeks comments on the GC’s proposals to clarify the definitions of “high frequency”, “instant win” and “low frequency” lotteries. These definitions dictate, for example, which of the GC’s Remote Technical Standards (“RTS”) will apply, since many will only apply to the last two types.

The proposed definitions are as follows:

  • “high frequency” lottery – one in which any draw takes place less than one hour after a draw in a previous lottery promoted on behalf of the same non-commercial society or local authority or as part of the same multiple society lottery scheme;
  • “instant win” lottery – one in which every draw takes place either before, or at the point of, purchase of tickets by participants; and
  • “low frequency” lottery – a series of separate lotteries promoted on behalf of the same non-commercial society or local authority or as part of the same multiple society lottery scheme where there is a period of at least two days between each lottery.

At present it is unclear how those lotteries falling between “high frequency” and “low frequency”, with draws more than one hour, but less than two days, apart, will fall to be classified and perhaps the answer to that will emerge as a result of the consultation process.

Have your say on this Consultation before 30 September, using the link above. Should you have any questions or concerns, do please contact me at anna@www.woodswhur.co.uk or on 07767782997.

 

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What is the future for casinos in the UK?

The Gambling Act 2005 was intended to modernise gambling in the United Kingdom by replacing the anachronistic 1968 Gaming Act with legislation better suited to the 21st Century. The 1968 Act had placed tight restrictions on the number of casinos and these were limited to specific “permitted areas.”

In the months leading up to the 2005 general election the media and the incumbent gambling industry led a campaign against the Gambling Bill, focused on so called “Las Vegas style super casinos.”

Up until that time, grandiose schemes for the redevelopments of places like Blackpool and the O2 Arena in London had been promoted for large-scale, resort-type casinos.

By the time the legislation received royal assent in April 2005, it had been stripped of its boldest attempts at liberalization and the possibility of opening casinos across large areas of the country was removed, as was the ability to transfer existing casino licences from one region to another.

As a result of these changes many large towns (and Boroughs within London) are still unable to see casinos locating within their area and many of the old licences are dormant and remain parked, waiting to see whether liberalization and change will follow.

Prior to the introduction of the Gambling Act 2005, there were 53 permitted areas where casinos could be licensed. These were prescribed by Regulations which came into force back in 1972. The demographic landscape of a huge number of areas had changed over this period, but the permitted areas did not, and as a result the casino sector stagnated. There are a total of 186 1968 Act licences which are “frozen in aspic” and cannot be increased. The last record showed that 146 of these licences are currently being operated, with the other 40 parked and dormant.

16 Local Authorities were granted new licences under the 2005 Act. 8 large and 8 small casino licences but no “super casino” envisaged in the preamble to the legislation. The large and small casinos were given greater flexibility in their public offer than their predecessors under the 1968 Act.

When the National Casino Industry Forum gave evidence before the CMS Select Committee, they raised issues of “portability” of the 1968 Act licences- the ability to move licences from where there was over-provision to areas which wanted a casino but could not have one. This issue gained some sympathy from the Committee, who stated that “we recommend that any Local Authority be able to make the decision as to whether or not they want a casino.” They went on to say “…as a step towards this, we recommend that existing 1968 Act casino licences are made portable, allowing operators to allocate to any Local Authority provided that they have the consent of that Local Authority.”

This seemed a very sensible solution to the problem of dormant licences. Many London Boroughs, unable to have a licence as they were not part of the permitted area scheme of the 1968 Act, and indeed large growing population centres outside of London, were keen to have a casino in their locality. A further benefit would be that the overall number of gambling permissions across the country would not increase but would, instead, see a redistribution of already-granted licences.

Local issues could be dealt with by way of:

  • Local Authority approval;
  • planning permission; and
  • a premises licence issued under the Gambling Act 2005 by the Licensing Authority for that area.

This was immediately attractive to the industry. The number of operators of casinos has diminished due to independents selling to bigger operators and the coming together of the Gala and Grosvenor Estates of casinos.

What we have seen to be particularly successful in London is the siting of quality casinos within 5 star hotels and a good example of this is the licence that was granted to the Park Lane Casino in the Hilton on Park Lane.

Many operators of London 5 star high-end luxury hotels are keen to have a casino licence. For example the City of London and Camden, as well as others, wish to have the ability to have (a) casino(s) in their authority areas. However, without the introduction of portability of licences, this is currently precluded. There is a history of licences which have operated in the permitted areas which were granted where the premises have now closed, trapped in areas where the supply side is saturated, the local demographic has changed or there has been some other factor, for example the grant of a 2005 Act licence. This, in many areas, has eroded the economic basis for their development. Licences are “locked in” while other interested Local Authorities are “locked out”, which is causing the market to fail. There are 13 licences granted under the 1968 Act which have never opened.

It would seem sensible to allow the portability of licences – with no increase in their total number – as demand for casinos in other, currently non-permitted areas would generate investment, jobs and tourism and local demand is currently unmet because licences are not portable.

Of the 16 new licences granted as a result of the 2005 Act, 10 of them were in existing permitted areas. In real terms, therefore, there is now only an increase of 6 new areas where casinos can be licensed. This is not what the 2005 Act set out to achieve.

While the Government seems to have more significant pressing issues to deal with than the casino sector, there does not seem to be much prospect of an introduction of a scheme of portability. This issue appears to have gone off the political agenda. Most of the casino industry, and many Local Authorities, would be keen for this to gain traction. It would present a great opportunity for dealing with so many dormant licences.

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As if your business didn’t need another reminder to take care!

No one could fail to be aware, in recent weeks, of the spotlight placed on health and safety compliance after the disaster at Grenfell Tower.

Following very shortly after the terrible loss of life, the Sentencing Council has announced a consultation to agree on new guidelines for Courts sentencing those prosecuted for manslaughter.

Those of you following the Grenfell Tower case over the next months and years will hear much about corporate manslaughter, but, equally, much about gross negligence manslaughter. This is the offence which, unlike corporate manslaughter, places individuals in the dock.

The gross negligence manslaughter consultation and, ultimately, the guidance will be designed to produce more consistency when dealing with offenders for this offence.

We will keep you posted as to how the consultation and guidance progresses, but one thing which is clear is the criteria that the Courts will use when assessing the culpability of offenders. If you seek to save costs while avoiding adequate safety arrangements, allow failures to persist for weeks or months or longer than necessary, or if you are in  a dominant position within a business such that you are able to influence the situation and remedy issues and don’t, the Courts will take a dim view of this and reflect it in any sentence handed down.

The message is clear and will be repeated in the months and years to come, with anticipated prosecutions arising from events such as Hillsborough, Grenfell Tower and others.

Ensure that you have a robust system to deal with health and safety issues, make sure you have competent advice in framing these systems and the auditing of them. Always carefully consider issues where health and safety plays a factor and ensure you can evidence your decision-making process when deciding on one course of action over another.

Only a couple of years ago, it was a government pledge to reduce red tape and bureaucracy to allow businesses the freedom to be entrepreneurial. I noticed only the other day a call by a number of pressure groups to disregard this pledge and more heavily regulate businesses and organisations in the area of health and safety.

Agree with it or not, stringent regulation with severe penalties is here to stay.

 

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It may not happen to someone else

The latest statistics produced by the Health and Safety Executive on fatal accidents in the workplace show that 137 people died at work in the 12 months up to March of this year.

This does not include members of the public who also died as a result of work-related accidents, the number of which stands at 92. Taking these two figures together and considering the 541 (2015 figures) people who also died whilst driving  at or connected with work, the figure is a troubling 770 deaths.

Having spent my professional life dealing with the aftermath of fatal accidents for organisations involved in the death of an employee or a third party, I cannot overestimate the impact such an event has on an organisation.

Studies conducted show that, for every pound which an organisation ultimately pays in terms of a fine arising from a prosecution, there are unseen indirect costs arising from factors such as increasing insurance premiums, legal expenses, welfare costs, lost productivity and HR issues: the list goes on.  These unseen costs outweigh the actual fine many times over. 

In addition to this, the tremendous amount of time that needs to be devoted by senior management within the business to deal effectively with the investigations by, for example, coroners, police or the local authority, together with managing any civil claims, quite apart from internal issues, is all-consuming. Especially when you are trying to run your business simultaneously.

The much-hackneyed warnings of health and safety lawyers  about having  good H&S systems are worth listening to.

However, with that advice comes another important step that organisations need to take if an accident occurs  – correctly resource the issue internally, obtain specialist advice, speak to your insurers, speak to your lawyers and ensure that you have a team ready, both internally and externally, to be able to deal with the aftermath of a workplace fatality, which will take years not weeks or months to resolve.  Trust me!

 

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Gambling Commission unveils new Enforcement Strategy

The Chief Executive of the Gambling Commission, Sarah Harrison, announced in a speech at the GC’s Raising Standards Conference on 8 November last year that the regulator was planning to consult on a new Enforcement Strategy. That Consultation took place between 26 January and 21 April this year, receiving some 21 submissions, mostly from operators. The GC released its Response to the Consultation and submissions last month and on Wednesday (5 July), it published a revised suite of enforcement policies as the outcome of this process.

Those policy documents, which can all be found on the GC’s website, are:

  • Statement of Principles for Licensing and Regulation;
  • Licensing, Compliance and Enforcement Statement;
  • Statement of Principles for determining Financial Penalties; and
  • Indicative Sanctions Guidance.

The key changes include:

  • Amendments to the Principles for determining, and Guidance on, sanctions, including introducing higher financial penalties for licence breaches, particularly in cases of systemic and/or repeated failings;
  • Revising the Principles, Statement and Sanctions Guidance to put all of the GC’s regulatory tools, including licence reviews (of both operating and Personal Management Licences), on an equal footing, thereby removing the previous bias in favour of reaching settlements; and
  • Introducing time-limited penalty discounts to create better incentives for early settlement.

The new Enforcement Strategy is consistent with the GC’s current ambition to ensure that operators raise standards and put customers first. The GC says it is building on its experience to date, whilst preserving the legal and procedural safeguards which are already a feature of the gambling regulatory framework, namely:

  • The right for operators to be informed that the GC is commencing a licence review;
  • Following the correct due process and disclosure procedures and the use of the balance of probabilities test when the GC addresses regulatory investigations;
  • Giving opportunities to operators to respond to the evidence and attend an oral hearing before decisions are made;
  • A commitment to proportionate decision-making;
  • The use of appropriate regulatory tools to deal with non-compliance; and
  • The right of appeal to the First Tier Tribunal.

The responses to the Consultation challenged the GC on various fronts. Some respondents suggested that, by championing consumers, the GC is exceeding its powers: the licensing objectives should be paramount and this initiative amounts to “regulatory creep”. Some alleged that the GC is failing to acknowledge its obligations to the gambling industry and that its policies, Guidance and statements on enforcement lack clarity. Some also claimed that there is no need to put all regulatory tools on an equal footing, that a licence review should be retained as the last resort, and that the GC has not got the balance right on timely disclosure by operators.

In its June 2017 Response to the Consultation process, the GC has defended its position, stressing its obligation to protect the consumer as part of promoting the licensing objectives, including protecting children and the vulnerable and ensuring that gambling is conducted in a fair and open way. The GC acknowledges that it must balance the interests of consumers and operators, which it does not see as being in conflict. It denies unfairly prioritising consumers and has sought to reassure operators that its decision – making processes will always be lawful, rational and reasonable.

The GC has also defended its decision to place all regulatory tools on an equal footing, in order to supply the regulator with a full range of powers so that it can use the most appropriate one, given the circumstances and severity of any breach. It has stressed that it is not moving towards a position whereby it actually favours a licence review over a settlement. The GC says that it will continue to use settlements, where they are an effective and efficient way of achieving a satisfactory outcome and appropriate sanction.

The GC has, further, made it clear that it believes its approach to timely disclosure to be appropriate. The earlier that disclosure of all relevant facts and appropriate admissions are made, the more credit that will be given to the operator, whether a formal licence review has been instigated or not. That said, the GC has put its foot down to the extent that it says that it will not extend its approach to any form of plea bargaining – it is open to argument, but will not negotiate on enforcement or sanctions.

So, what can we expect to see as a result of all of this?

First, I believe, more frequent and higher financial penalties for breaches, the quantum of which will be based on a calculation of the detriment to consumers or gain to the operator arising as a result, and an assessment of the seriousness of the breach. This will, however, take into account (amongst other things) the state of knowledge and nature of the licensee, whether it should have known of the breach and sought to conceal it, and the impact of the breach on the licensing objectives and the general public.

Secondly, discounts to be applied to the penal element of any financial penalty (but not to the gain and/or detriment element) for timely and voluntary admissions and/or disclosures made by a licensee, where concerns have arisen. The GC’s Licence Conditions and Codes of Practice have always emphasised the need for operators to work with the GC in an open and collaborative way, and this has been underlined by this new Enforcement Strategy. Unfortunately there is no guarantee that any disclosures will not be included in a Public Statement following the outcome of the investigation, as this will depend on the individual circumstances of the particular case and the public interest.

Lastly, operators should be alive to the fact that the GC has dispensed with its bias towards settlements – we may well see an increase in the number of licence reviews, as a result. We have seen an increasing trend towards reviews of PMLs in recent times, and we can expect to see this continue.

Should you have any queries on the GC’s new Enforcement Strategy, or on any other GC licensing, compliance or enforcement issues, please do not hesitate to contact me at anna@www.woodswhur.co.uk or on 07767782997.

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Summary Reviews: sometimes a Sledgehammer to crack a Nut?

Are expedited reviews the only tools available for dealing with problem premises, or should they be reserved for only the worst-offending premises? I think that they are the tool of last resort and should be reserved for situations where there are no other routes open.

I have been involved in a summary expedited review this week, which I felt could have been dealt with without the need for formal proceedings to have been launched. I know I’ve written about this topic before, but I think it is worthy of a reminder.

The circumstances of my case were that the police launched a summary review of the premises licence where they did not feel that the Designated Premises Supervisor was supporting them in excluding known criminals and drug dealers from the Premises.

My client has a number of licensed premises (including others within the same licensing authority) which had not caused any difficulty. He has always had a clean bill of health and has always been seen to be a responsible operator.

The premises in question had a Designated Premises Supervisor managing the premises whom the police had lost faith with. They had asked him to undertake certain initiatives and, in particular, look to exclude known drug offenders from the premises. His answer was that he did not think that they were dealing drugs on his premises and that he could control them. Unfortunately, he had also not been attending Pubwatch meetings when asked to do so.

Matters came to a head when a significant drugs deal was seen to be happening in the doorway of the premises – the premises still being open two hours after they should have closed.

The Managing Director of the Company who deals with licensing issues for all of his premises was unfortunately out of the country when the summary review was launched, and the interim steps decision by the Licensing Authority was to suspend the Premises Licence.

Not pleasant circumstances to come back from your holidays to!

My client instructed me to review where they were in the proceedings and to speak to the police and the Licensing Authority.

As a responsible licensee he accepted my advice that we should not challenge the interim steps by making representations against them until we had had an opportunity to talk properly to the police and the Licensing Authority Enforcement Officers to see exactly where they were coming from.

We managed to set up a meeting with the Police Licencing Officer, Local Neighbourhood Police Officers and the Licensing Authority Enforcement Officers and it soon became apparent that the issues were significantly directed towards the day-to-day management of the premises by the Designated Premises Supervisor, who had not been following company procedures.

A course of action was agreed, in that the Designated Premises Supervisor would be removed from the premises and only be replaced by someone that the authorities felt was suitable to manage premises that have had these issues.

Rather than just a paperwork exercise of submitting an application form for the new Designated Premises Supervisor, we offered that any potential candidate should be seen by the police and the Licensing Authority in a formal interview to assess his or her ability to run premises which needed to exclude the problem element that started to congregate there. The police thought that this was a positive initiative and we undertook that the Premises would not be open until a suitable person was found, to the satisfaction of the police and Local Authority.

A number of additional conditions were agreed to be placed on the premises licence and a joint position was agreed to be put before the Licensing Sub-Committee.

This was an exceptionally good example of a responsible operator working properly with the enforcement authorities to ensure that a positive outcome could be achieved, to ensure that the premises could reopen in such a way that they would be promoting the licensing objectives.

My only issue with this is that all of that could have been achieved by way of a minor variation. There had been no pre-application conversation with our clients, who would have agreed voluntarily to close the premises until the Designated Premises Supervisor was replaced and additional conditions attached to the Premises Licence by way of a minor variation.

This would have saved a significant amount of money both for the Police Licensing Authority and, of course, my client.

I can understand at times that the route to summary review is the correct decision to make. This, particularly, where there is an immediate need to close premises due to the fear of continuing serious crime and/or disorder and in the case of an operator who would not be prepared to close the premises voluntarily.

In addition, I have always advised police forces that I have represented over the years to go down the route of a summary expedited review, if the criteria to commence the proceedings are made out and if the desire iss to close the premises immediately by way of interim steps and seek revocation of the Premises Licence at the subsequent final review of the premises licence.

However, I think there is always merit in taking one’s foot off the gas before launching such proceedings to determine what it is that is desired as the end result. In my case, considerable sums of money could have saved, as the operator has undertaken to do, through the summary review proceedings, what it could have done voluntarily, without the proceedings be launched.

I am always happy to discuss the content of my articles and if there is anything in this piece which either police enforcement officers or operators would like to discuss with me, then please do not hesitate to contact me at paddy@www.woodswhur.co.uk or on 07738 170137.

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Food Standards Agency publishes Local Authority Enforcement Data

The Food Standards Agency has published food law enforcement data from Local Authorities for the year 2016 to 2017. The link below will take you through the Food Standards Agency website where you can find the interim enforcement statistics for 2016/2017 on UK Food Hygiene Data and UK Food Standard Data.

https://www.food.gov.uk/enforcement/monitoring/laems/mondatabyyear/interim-enforcement-data-2016/17

This data is released ahead of the full statistical report by the Food Standards Agency, which will be available later in July. The Agency has a significant plan to improve transparency when presenting individual Local Authority food hygiene and food standard statistics. This is part of an initiative to assist Local Authorities in understanding their powers and to give them the ability to benchmark themselves against other Authorities.

What is clear from previous comparable reports is that there is a growing enforcement drive in regulatory food law. Operators should be looking closely at the data to see whether they are in an authority area which is keen to lead with formal prosecutions. We cannot be more robust in our advice. Please do not wait until you receive your prosecution before instructing lawyers to help with these matters. With the significant increase in potential fines upon prosecutions it is more imperative than it has ever been for you to seek legal advice at the earliest sign of potential interaction with a Local Authority. It is very much in operators’ interests to have representation through any investigation proceedings and formal interviews. We have seen recently operators undertake these elements themselves, perhaps in the hope of making a potential costs saving, however, this can often lead to a significantly more expensive end bill when facing prosecutions at Court. By this stage, if we haven’t been involved from the outset, it can often be difficult to prepare a robust defence or mitigation. It is critically important that advice is sought as soon as the issue is flagged up by any Local Authority interaction.

The data show that there have been a disproportionately large number of prosecutions in certain areas of the country, which is reflective of the range of approaches taken by different Local Authority areas.

There is still a high number of premises being dealt with by written warnings, particularly in the London Boroughs, with, in 2016-2017, Havering writing letters of warning to 763 premises, Hounslow 721 premises and Tower Hamlets 1,310 premises. There are significant variations throughout the country and we await the full statistical report.

If operators need assistance in due diligence to avoid warnings and prosecutions, or representation throughout the regulatory enforcement process, then please do not hesitate to contact me at james@www.woodswhur.co.uk or on 07702 802506.