Category: Licensing Law

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Woods Whur successful in grant of planning permission for a new Potting Shed in the former HSBC Bank Guiseley

I am delighted that I was able to secure planning permission for a change of use for the former bank in Guiseley which will become a Potting Shed.  This is the sixth Potting Shed unit that I have been able to secure a licence upon and the first where I have appeared on behalf of the client before the Plans Panel to secure planning. It is a fantastic and growing family friendly brand.

The application for change of use had 76 objections from local residents and the two Local Ward Councillors also objected to the application.

The South and West Plans Panel of Leeds City Council considered the application yesterday and I was delighted to persuade them to grant the change of planning use with a vote of 7 in favour of the application and  2 against the application.

The panel accepted that although there was a localised level of objection to the application that the application had been promoted in a proactive way and followed policy. They also thought that there were significant benefits to the grant and also the operator had a good track record elsewhere.

We had held a public meeting in Guiseley to explain what the scheme entailed and had agreed a number of specific conditions with the Planning Officer in relation to the build fit out and opening hours of the premises.

I was delighted to work with Carl Copestake from Knights who leads their planning department.  It was beneficial to have a planner and myself with detailed knowledge of the company and the site to deal with the questions raised by the Planning Panel. 

This now gives the greenlight for the operator to fit out the redundant building and have it open in time for Christmas trading. 

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The Section 182 Guidance on Regulated Entertainment is not the easiest read!

I was recently asked to advise a client on what did and what did not constitute regulated entertainment under the Licensing Act 2003.  The background to the question was a fairly complicated one in that  a Premises Application conducted by my client in person had been refused and objections had been received to Temporary Event Notice applications, on the ground of nuisance.  My client was looking to explore the possibility of running an event without a Temporary Event Notice or Premises Licence and wanted my advice on what could and could not take place. A fairly straightforward question I thought! 

As a general rule, live and recorded music would be licensable under the Licensing Act 2003 but there are of course numerous exemptions.  The Live Music Act 2012 created exemptions for live amplified music in unlicensed premises (which didn’t apply in this case) and for unamplified music elsewhere (no audience limit 08:00 – 23:00).  Some entertainment facilities (stages, microphone stands) have not been licensable since October 2012 and recorded music in unlicensed premises benefits from the same exemption as live music, which also covers DJs and discos. 

I thought I would just check a number of points in the section 182 Guidance and I have to admit that I am not sure that I have either looked at this recently or remember looking at it at all.  I turned to Chapter 16, expecting to see a few paragraphs on the subject, and was somewhat surprised to see that the Chapter on regulated entertainment runs to 28 pages.  This compares to 8 pages in Chapter 11 on reviews, 8 pages in Chapter 2 on the licensing objectives, 5 pages in Chapter 5 on who needs a Premises Licence and even 6 pages in Chapter 7 for Temporary Event Notice.  Indeed, the chapter on regulated entertainment is the same length as the chapters on Temporary Event Notices, reviews and who needs a premises licence, all put together!

My client wanted advice on private events, which are dealt with at paragraph 16.1.3.  This starts well: “Events held in private are not licensable unless those attending are charged for the entertainment with a view to making a profit”.  Just because a musician charges the organiser of a private event, this does not of itself make the entertainment licensable.  This makes sense – you could have a private party at home and pay a musician to attend.  It only becomes licensable if guests attending are themselves charged, with a view to achieving a profit.

If, therefore, you want to hold a wedding on private land and you pay the landowner to provide wedding facilities and entertainment facilities, then that event is licensable because the landowner is charging the wedding couple with a view to achieving a profit.  If, however, the wedding couple paid the landowner for use of the land but paid the entertainer directly, without the landowner having any involvement in organising the entertainment, the music would not amount to regulated entertainment and would not be licensable.  The wedding couple are not seeking to make a profit in paying the entertainer and do not (as a general rule!) charge their guests to attend their wedding.

The chapter of the s182 Guidance continues setting out circumstances in which entertainment activities are no longer licensable, for example those staged by local authorities, hospital health care providers and school proprietors.  We often get queries from school premises with regard to musical entertainment and also from community premises, which are dealt with at 16.2.1.  No licence is required for the performance of live music or the playing of recorded music on community premises between 08:00 and 23:00, as long as there is no Premises Licence permitting the sale of alcohol, there are less than 500 people attending and the written consent of the  community premises’ management committee has been obtained.

Live music is dealt with at paragraphs 16.2.6 – 16.2.9, with key terms used in relation to live music explored at paragraphs 16.3.0 – 16.3.2. 

If you have a Premises Licence which authorises live music and/or recorded music, what is the position now that live music and/or recorded music is exempt under the Live Music Act?  Paragraph 16.3.6 of the s182 Guidance confirms that any existing licence conditions relating to live music or recorded music remain in place, but are suspended between 08:00 and 23:00, as long as the Premises are open for the sale of alcohol and the audience is less than 500.  

Where we have encountered difficulties sometimes is in advising clients on whether a licence condition does in fact relate to live or recorded music.  General management conditions may have been placed on the licence with an eye or ear on potential noise nuisance but it may not specifically relate to the provision of entertainment.  It could relate to noise from customers or noise from entertainment.  Holders of Premises Licences need to be very careful therefore, if they are determining that a licence condition is not applicable.  In many ways, common sense should prevail and the general duty to promote the licensing objectives and to prevent a nuisance still applies, so if the condition promotes the objectives and prevents a nuisance then Premises Licence holders should apply the conditions. 

There are further paragraphs in the Guidance on incidental music. Incidental music is not regulated entertainment if it is incidental to another activity which does not itself fall within a description of entertainment under paragraph 2 of Schedule 1 to the 2003 Act (clear as mud!).  Whether or not recorded music is incidental is one of the most regular questions we get asked when preparing new applications.  The Guidance sets out, at paragraph 16.5.9?  some factors which may be considered:

  • is the music the main or one of the main reasons for people attending the Premises and being charged;
  • is the music advertised as the main attraction; and
  • does the volume of music disrupt or predominate over other activities or could it be described as background music.

All of this is incredibly subjective and therefore difficult to enforce.  What is background music at 1:00pm whilst customers are having lunch, will be completely different to background music at 11:00pm, as the music might well be considerably louder and yet could still be classed as incidental and background music.

The Chapter of the Guidance ends by referring to other licensing regimes, such as those covering copyrighting and leafleting, and it is also necessary to consider whether the “entertainment” requires any other form of licence such as a TV licence or indeed a licence from the maker/broadcaster of any film or advert.

If in doubt, read the guidance, or contact us for advice!

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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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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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Manchester on alcohol and entertainment licensing law

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: Continue reading Manchester on alcohol and entertainment licensing law

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Terrible atrocities in the UK have a bearing on licensed premises

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. Continue reading Terrible atrocities in the UK have a bearing on licensed premises

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Gambling Commission Chief addresses Lotteries Council Annual Conference

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.

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Boxing events becoming difficult to manage

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.

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Evidence is the key to success at licensing hearings

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!