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I am currently advising a major UK charity, a household name, on how best to maximise the revenue it can raise from its lotteries, in order to, in turn, optimise the sums of money that it can devote to its charitable aims and objectives. A relatively uncontroversial endeavour, one might have thought, and one that all of us would support.

The problem, however, is that the Gambling Act imposes various financial limits on society lotteries, which sit as conditions on every operating licence granted to a so-called “large society” by The Gambling Commission. These limits are prescribed by the legislation in order to preserve the pre-eminent position of The National Lottery, whose monopoly is driven by the view that a single national lottery, with protections, is the most efficient way of generating money for good causes on a national scale.

The National Lottery was established in 1994 and is the only lottery scheme in the country with the capacity to offer life-changing prizes with no cap on annual sales. By contrast, society lotteries cannot raise more than £10 million in ticket sales in any calendar year, or £4 million via a single draw. In addition they are limited insofar as the value of the first prize they can offer is concerned, to £25,000, or 10% of the value of the ticket sales, whichever is the greater.

The problem that my client has encountered, then, is that its lottery scheme has proved to be so successful that it has inadvertently breached the £10 million annual proceeds limit, largely due to the way in which it timed its lottery draws. Whilst The Commission has been broadly supportive and is keen to ensure that the charity concerned can maximise the funds it applies to its numerous charitable activities, the breach of the proceeds limit constitutes a breach of a condition of its operating licence and, accordingly, The Commission has no choice but to impose a sanction, which it has chosen to frame as a corresponding reduction in the lottery proceeds that the charity can raise via lotteries this year.

There is a solution to this situation, however, which consists in the charity establishing a second society, with a separate lottery carried on under a second large society lottery operating licence. The Commission is prepared to sanction such a structure, and produced guidance on the subject in August 2011. There are various hurdles, however, that need to be overcome in order to run a so-called “umbrella” scheme – running multiple lotteries under a single brand.

First, the charitable aims and purposes of each society under the “umbrella” must be clearly and demonstrably distinct. This is not to say that the objects of the overarching charity themselves necessarily need to change, but the purposes for which each society is established must be different. That means that one cannot, for example, have a single charity with one society lottery being run to benefit animal welfare and another in aid of the welfare of donkeys. A scheme with one lottery for Irish dog rescue and another to raise money for Welsh cat rescue would work, though.

Secondly, whilst the general advertising and marketing material relating to an “umbrella” lottery scheme can feature the branding and logo of the main charity, it must make it clear that each draw will be on behalf of separate identified societies. The relative prominence on promotional material and tickets of the name of the umbrella lottery brand compared to the name of the society or societies involved in the promotion of the draw must be such as to ensure that consumers clearly understand which society’s lottery, exactly, they are supporting.

Some six large national charities currently hold multiple society operating licences in respect of separate societies that they have set up, and which meet the distinctiveness tests set down by The Commission. One example is The People’s Postcode Lottery, which has established The Postcode Animal Trust to support animal welfare, The Postcode Children’s Trust to support children’s charities and The Postcode Culture Trust to support museums and other cultural groups and organisations.

After extensive discussions with The Commission in this case, it appears that we have come to an agreement on establishing separate societies that will satisfy both parties. The challenge, of course, is to come up with charitable aims that are both sufficiently distinct to meet The Commission’s requirements whilst still having a broad enough appeal to make entering into the individual lottery remain attractive to players as a means of charitable giving.

Looking at the society lottery landscape more generally, though, it may well be that the law in this area is set to change in the relatively near future. From 11 December 2014 to 4 March 2015, The Department for Culture, Media and Sport held a consultation in the form of a “call for evidence”, looking at the current balance and respective boundaries between The National Lottery, society lotteries and other forms of gambling, many of which, such as some betting-on-lotteries products, are run entirely for commercial gain. At the same time, The Culture, Media and Sport Committee carried out an investigation into society lotteries, specifically examining their role and their place within a system that allows “umbrella” schemes and the arguments for raising or removing the financial limits.

These moves were undoubtedly motivated by the recent furore surrounding the best-publicised “umbrella” scheme, The Health Lottery, which launched in October 2011 and is a consortium of 51 society lotteries defined by geographical region but which operates across the country and can, accordingly, raise up to £510 million annually in ticket sales. A high-profile challenge to The Health Lottery, brought by Camelot, who operate The National Lottery, in the High Court failed in the summer of 2012, but the case raised concerns that the new “umbrella” scheme was placing the unique national nature of The National Lottery and the good cause funds it raises under pressure. The Coalition Government of the day’s stated position was that maintaining the health of The National Lottery was essential and that it was prepared to bring forward changes to regulation, if necessary to achieve this.

The consultation was launched with this approach in mind and with a view to gaining more of an understanding of how the current market operates and the competing interests of those within that market, before adopting any reforms.

The call for evidence had the benefit of advice from the Commission on the boundaries between The National Lottery, society lottery and commercial gambling markets and how any changes therein might affect both public perception and returns to good causes from The National Lottery and society lotteries. The information provided established that the market share of lottery income to society lotteries has risen slightly between 2009/10 and 21013/14, from 6% to 9%, whilst the share to The National Lottery has fallen, from 94% to 91%. However, taken as a proportion of national gambling spend, the proportion taken by the lottery sector overall has remained constant.

Society lotteries have achieved great success in recent years, with sales having risen rapidly over the last five years. In 2008/9, £178.6 million sales were achieved. This more than doubled to £376.9 million in 2013/14, with £175 million going to good causes. Societies must donate a minimum of 20% of proceeds to the good cause and in practice the percentage donated varies considerably from society to society, with some donating the bare minimum and others considerably more. The average donation across the society lottery sector is 42%; this contrasts with The National Lottery, which donates approximately 26%, although Camelot does pay 12% on top of this in lottery duty to The Treasury.

The sheer scale of The National Lottery, though, means that it has been very successful and has donated an eye-watering sum of money to good causes, over £32 billion to date. Since its inception it has made over 450,000 individual awards, which amounts to a quite staggering average of 138 for each postcode district in the UK.

The Commission’s advice to the consultation was that, in terms of quantum, The National Lottery continues to dwarf the society lottery sector and that impacts generated from potential threats posed by “umbrella” society lottery schemes are currently small. It did not rule out greater impact occurring in the future but thought this unlikely, given the considerable commercial barriers to such schemes achieving genuine consumer traction, including the current financial limits that apply to them.

Against this backdrop, the Lotteries Council of Great Britain, which represents the interests of society lotteries, submitted a strong response to the consultation, in which it argued for the relaxation of the financial limits to £100 million annually and £10 million from a single draw. It also issued a plea for a new first prize limit of £100,000 or 50% of proceeds. It maintained that market share of society lotteries remains extremely small, even since the launch of The Health Lottery, and that increasing the financial limits in this way would enable charities to raise considerably more money to do good, without affecting a thriving National Lottery. It believes that there is scope for this to happen, given the generosity of the British public, combined with more sophisticated modern fundraising methods. It also takes the view that increasing financial limits would do away with the need for charities to create multiple lotteries, with the additional cost and bureaucracy burden that this brings, and points to the fact that it is at present possible to circumvent turnover restrictions in this way calling into question  the need to have them at all.

The current Government is still considering the responses to the consultation, and various meetings have been taking place behind the scenes. Thus far, it is unclear what, if any, reforms it will decide to implement. However the tide appears to be turning at present as far as the charitable sector is concerned, with new legislation promised to curb excessive marketing, cold-calling and touting for donations. In this context it may well be that the relaxation of the rules that the society lottery sector so craves may not be forthcoming. We will continue to monitor developments in this area and will issue a further update when one is available.

For further information please contact Anna Mathias at anna@www.woodswhur.co.uk

I have acted for Authorities wanting conditions on premises licences precluding the sale of beers and ciders above 5% or 6%, operators who are happy to accept the condition and operators who are keen to fight the condition. All of these cases have concerned off sales premises licences and have been directed towards the impact that street drinkers have in a particular locality when they consume high ABV alcohol in the street and then cause antisocial behaviour and/or crime and disorder.

Are these valid conditions to attach to premises licences?

It is a much debated point. I have seen authorities and Magistrates’ Courts rule in different directions. Some imposing the conditions and others not, in my view this is consistent with the need to be case/premises specific and what we should expect to see.

Para 1.16 and Chapter 10 of the S182 Guidance are good starting points to look at this issue.

Licence conditions – general principles

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

Licence conditions:

• must be appropriate for the promotion of the licensing objectives;
• must be precise and enforceable;
• must be unambiguous and clear in what they intend to achieve;
• should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
• must be tailored to the individual type, location and characteristics of the premises and events concerned;
• should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
• should not replicate offences set out in the 2003 Act or other legislation;
• should be proportionate, justifiable and be capable of being met;
• cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and
• should be written in a prescriptive format.

I have highlighted the relevant sections of this paragraph, if the condition is imposed in breach of this guidance/with lack of evidence for it being appropriate; the likelihood is it would be unlawful.

Chapter 10 then covers other areas which are relevant to whether this is a valid condition to attach to a premises licence and the following paragraphs are relevant and the following paragraph is most important:

10.10 The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case-by-case basis and standardised conditions which ignore these individual aspects should be avoided. For example, conditions should not be used to implement a general policy in a given area such as the use of CCTV, polycarbonate drinking vessels or identity scanners where they would not be appropriate to the specific premises. Licensing authorities and other responsible authorities should be alive to the indirect costs that can arise because of conditions. These could be a deterrent to holding events that are valuable to the community or for the funding of good and important causes. Licensing authorities should, therefore, ensure that any conditions they impose are only those which are appropriate for the promotion of the licensing objectives.

So, my view has always been that we may see the condition on the premises licence for off sales in the following circumstances:

• Where the operator has offered this as a condition in their operating schedule, maybe because of discussions with the police and/or licensing officer prior to application.
• After a review the condition may be imposed if there is evidence to show that the sale of high ABV beers and ciders is causing an adverse impact on the licensing objectives in the immediate vicinity of the premises.
• The condition should not be imposed as a “standard condition” on all new licences in an area or the whole of the Licensing Authority area, there must be specific evidence for each premises licence as to why it is appropriate to attach this as a condition.

However, the picture is now a much bigger one as the on trade are fearful that this could grow into pubs bars and clubs.

SIBA, the Society of Independent Brewers, which represents over 820 British brewers, has thrown its weight behind a campaign calling for the European Commission to force the UK Competition and Markets Authority to act against “collective boycott schemes” run by licensing authorities, which prevent the sale of higher-strength beers and ciders. They estimated that around 95 authorities covering up to 18,000 licensed premises are running schemes of one kind or another. This certainly is not my view of the scale of the imposition of conditions of this nature, and certainly not so much concerning the on trade.

SIBA has written to the European Commission and encouraged its members to submit examples in support of its submission. SIBA is concerned that retailers who agree to participate in the schemes run a serious risk of infringing competition law by engaging in a coordinated boycott. While the schemes are typically aimed at low-price, high-strength beers and ciders and not ‘craft’ or ‘artisan’ beers; the Society is seriously concerned that this is not the case in reality and that consumers risk losing access to thousands of high quality crafted beers.

Mike Benner, Managing Director, said ‘Our members take great pride in the excellence and range of their beers. They make beers for everyday drinking, beers to accompany food, and beers for connoisseurs to savour and sip. They brew a huge range of different beers, both regularly and occasionally, and many of these are fabulous, complex brews of higher strength and great repute. They make beer, they sell beer, and they take the utmost pride in beer.’

‘As a responsible organisation we absolutely support proportionate, effective measures to reduce alcohol misuse, but we do not support any intervention which is not within the law. We have significant concerns about the proportionality and legality of these schemes. It is our understanding that licensed retailers who agree to participate in these schemes run a serious risk of infringing competition law by engaging in a coordinated boycott of certain products.’

‘It is essential that British beer drinkers are not unnecessarily and unreasonably denied access to the thousands of fantastic beers available across the country and the Commission should take action to ensure competition law is upheld.’

I would not be advising an Authority to seek to impose this as a condition on the premises licence, nor advise an operator to accept the condition, unless there was a clear risk that the licensing objectives were to be put at risk without the condition being attached.

We will continue to monitor the imposition of conditions of this nature and see if the issue becomes a live issue for the on trade.

 

Although kick-off times for the home nations’ games vary, with some taking place in the afternoon, all 4 of England’s Pool A matches start at 8pm and, whilst this is not universally popular with fans travelling to the games, it will benefit pubs who can draw in a rugby crowd.

The fact that the Cup is being hosted here at least means that you don’t need to worry about games being played outside your normal licensed hours, but there are some other aspects of your licence that you should check before planning and publicising your rugby-themed events.

If you are screening matches live, there is no requirement to have permission to show films on your licence. You will need it; however, in the event that England make it to the Final, for example, and you want to show a recording of the game again at some point in the future. Remember that you could do this under a Temporary Event Notice.

You may be thinking of putting up a big screen, or even setting up an occasional bar to serve beer to thirsty supporters. If so, it’s worth checking your licence plan to ensure that you will not be straying into a part of your premises or garden that isn’t currently licensed for the sale of alcohol. Also take a look at the conditions on your licence to make sure that there are none that might prevent you from operating as you intend – only using plastics outside after a certain hour, for example.

You’ll be hoping to be busy during the 6 weeks or so of Pool matches – perhaps busier than usual. Of course, you’ll need to bring in adequate supplies and staff to make sure that everything goes smoothly – but keep an eye on numbers, too, to ensure that you don’t exceed any maximum capacity figure on your licence or fire risk assessment.

Rugby crowds tend not to be associated with disorder, but prepare for customers being boisterous – depending on how the game is going! If you have neighbours who have already shown themselves to be sensitive with regard to noise from your outside area, or patrons blocking the pavement, for example, you will need to consider how you will manage busy times, especially as large numbers of people may be arriving at, and leaving, your premises at the same time, as games kick off and end. You may need to carry out increased monitoring of external areas and bring in extra staff to patrol, collect glasses and clear up.

The Rugby World Cup is a fabulous occasion and, with a bit of forward planning, a great opportunity for you to maximise revenue in your business. Don’t forget the rugby widows, though – you may wish to consider your offer to those who might come along, but are not interested in watching the game. Personally, I can’t wait for the competition to start! May the best (British) team win!

Norwich City Council has agreed to introduce a Cumulative Impact Policy (CIP) for part of the city centre. There has been a significant amount of time and work in Norwich after the City Council announced its multi point plan for dealing with issues created by the night time economy. The initial report can be seen from the link below which introduced a number of initiatives:

http://www.norwich.gov.uk/CommitteeMeetings/Cabinet/Document%20Library/44/REPCabinet06NightTimeEconomy20140326.pdf

This document shows how the council looked at their various options, gives their reasons for abandoning the introduction of an EMRO and why it was thought that the potential return from the Late Night Levy was not worth going through the process of its introduction. A number of practical initiatives are promoted, such as, the introduction of the additional CCTV, introduction of night time road closures and working with the trade to provide toilet provision at the end of the night.

The major new initiative proposed was the introduction of a Cumulative Impact Policy.

Those who have read my previous articles on CIPs will know of my view that these should be used and treated with caution. There are well over 200 of them nationally. They are not mentioned in the Licensing Act, but are a creature of the S182 Guidance. If they are not used judiciously they can lead to the stagnation of the offer of licensed premises in areas where the introduction of new/better operators might be of an overall benefit.

When a policy is under consideration there is a suggested consultation process which should be undertaken before they are introduced, and they should only come into existence if there is an evidential basis for their introduction. Chapter 13 of the S182 Guidance deals with CIPs, Para 13.24 states:

‘There should be an evidential basis for the decision to include a special policy within the statement of licensing policy. Local Community Safety Partnerships and responsible authorities, such as the police and the local authority exercising environmental health functions, may hold relevant information which would inform licensing authorities when establishing the evidence base for introducing a special policy relating to cumulative impact into their licensing policy statement. Information which licensing authorities may be able to draw on to evidence the cumulative impact of licensed premises on the promotion of the licensing objectives includes:

• local crime and disorder statistics, including statistics on specific types of crime and crime hotspots;
• statistics on local anti-social behaviour offences;
• health-related statistics such as alcohol-related emergency attendances and hospital admissions;
• environmental health complaints, particularly in relation to litter and noise;
• complaints recorded by the local authority, which may include complaints raised by local residents or residents’ associations;
• residents’ questionnaires;
• evidence from local councillors; and
• evidence obtained through local consultation’.

Once a policy is introduced it must be engaged properly. The policy should not be used as a blanket ban on new applications or variations.

Para 13.30 of the policy states:

‘The effect of adopting a special policy of this kind is to create a rebuttable presumption that applications for the grant or variation of premises licences or club premises certificates which are likely to add to the existing cumulative impact will normally be refused or subject to certain limitations, following relevant representations, unless the applicant can demonstrate in the operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives. Applicants should give consideration to potential cumulative impact issues when setting out the steps they will take to promote the licensing objectives in their application’.

The Police and Licensing Authority should, therefore, be taking a pragmatic approach when new applications are lodged in a CIP area. Is it a genuinely different offer which will not add to the problems in the CIP area? Has there been good engagement with the responsible authorities to explain the application and why the applicant believes they will not add to the problems in an area? Is the operating schedule/conditions offered tailored to the issues in the area?

We have recently been successful with an application to vary a premises licence in the “red zone” in Leeds to introduce a VIP area into a previously unlicensed area. We agreed to keep to the previous capacity level at the premises, which was a condition on the premises licence. The Authority accepted that the variation had rebutted the presumption of refusal in that the agreed capacity condition, pre booked booths and waitress service was actually beneficial to the operation of the premises and the application was allowed by the licensing sub-committee. This is an example of where the local CIP is not hindering the development of a more mature offer at premises which will promote the licensing objectives.

It will be interesting to see whether the Norwich policy has a positive effect and deals with issues in the locality.

We are always delighted to receive feed back and comment from our newsletter….even if it is just to prove people are reading it! We do get a significant amount of comments. I recently had an informative reply after my article on Cumulative Impact Policies. We always try to respond to these replies and if we learn something new then this will feature in a subsequent article. We send the newsletter out every fortnight and hopefully there is a good mix of topical information across all sectors of alcohol, entertainment and gambling law and regulation. You do not have to wait for the fortnightly newsletter though as we are tweeting and posting on Facebook and Linkedin much more frequently.

 

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In the gambling sector the topic which has caused the most debate over recent times has been Fixed Odds Betting Terminals (FOBT), the higher stake and pay out machine permitted in High Street betting shops. The Gambling Act 2005 classified FOBTs as B2 gaming machines….those who have been involved in the sector pre-dating the Gambling Act will remember that they crept on to the High Street. The betting industry persuaded regulators (and the casino  sector) that FOBT were not gambling machines under the old act and were exempt from regulation, due to the random number generator set up of the machine. To avoid the threat of Court, an agreement was drawn up between the casino trade organisation and the betting industry to put a cap on the number of machines per shop and the maximum stakes and prizes.

Under the Gambling Act up to four can be sited on premises which have a betting premises licence. The maximum stake for a single prize is £100 (in multiples of 10). The maximum prize is £500.

Those who are anti FOBT have christened them the ‘crack-cocaine’ of gambling and allege that they can become instantly addictive . The speed of play, high stakes and prizes have led the anti-FOBT campaign to be highly critical of their exposure on the high street. However, they are legal, permitted as of right to operators who have the correct operating and premises licence. In addition, they are highly profitable for the betting industry and at times over the last 10 years have been a significant reason for the increase in the number of betting shops, in areas of high footfall.

They certainly have their critics and some Local Authorities have attempted to stem the flow of new licences.  They have lobbied the government to try and reduce the increase in the number of betting shops and also to reduce the rate of play, stake and prizes.

The Gambling Industry was holding its breath waiting to see the outcome of the election. The Labour party were pushing for restrictions and changes, but there wasn’t too much known in advance in Conservative policy. Not a great deal was happening in the run up to the election waiting to see what would happen after the new government was established.

The House of Commons Library has now issued a briefing paper on FOBTs for the benefit of MPs. It sets out details of the perceived  issues around them, previous consultations, betting industry initiatives and potential outcomes.

The Government has indicated that it was working with the Gambling Commission and industry to ensure that the Player Protection Measures introduced from April 2015 are to be ‘effectively evaluated’.

On 3rd June 2015 a Private Members’ Bill was introduced into the House of Lords. This has some key issues, which, if it becomes effective legislation, would reduce the maximum individual charge for a single player on a B2 machine from £100 to £2. This would have a massive hit on the profitability of these machines and the Industry is sure to lobby hard against this Bill.

The attention that FOBT’s get is not going to lessen due to the amount of Parliamentary and Regulatory scrutiny and we will continue to track developments in this area.

A recent case that I dealt with in the Midlands provides an insight into the overlapping worlds of licensing and the criminal justice system.

The clients, who run an off-licence, initially approached us to assist them in defending a review of their Licensing Act premises licence. The application had been made by Trading Standards, following a raid on the premises which had turned up a large amount of counterfeit and other illicit tobacco, concealed behind wooden partitions in the stock room. Interestingly, Trading Standards had chosen not to use the summary review procedure, which would have enabled the Local Authority to take interim steps in respect of the licence pending a full review hearing. That procedure was available to them, as the allegation amounted to one of serious crime being associated with the premises, but they chose instead to use the standard review process.

On behalf of the premises licence holding company, it was said that the directors had been unaware of the presence of the cigarettes until the raid took place. An employee, who was also the son of one of the shareholders, had confessed some time afterwards to hiding them there, having been prevailed upon to do so by an acquaintance. He had since been dismissed. This explained why, at the time of the raid and their subsequent PACE interviews, the director and shareholder had been unable to offer any explanation for the find.

We submitted statements to the Local Authority in preparation for the review hearing, setting out our clients’ case and also describing the various measures that the company had put into place since these unfortunate events, including dismissing the employee, passing a company resolution no longer to employ family members, and installing CCTV in the stock room. This was the first time that Trading Standards had heard our clients’ explanation, and they understandably sought an adjournment of the review hearing, in order to enable them to conduct a PACE interview of the employee concerned. We consented to this, and the story he gave in interview was consistent with our clients’ version of events.

This notwithstanding, Trading Standards asked that a new date be fixed for the review hearing, and this was duly done. In the intervening period, however, the prosecution brought by Trading Standards against the licence holding company and its director came up for hearing before the Magistrates’ Court and we were instructed to defend both parties at the trial.

There were some 22 charges brought, arising under the Consumer Protection Act 1987 and the Trade Marks Act 1994. The allegations related to possessing for sale counterfeit tobacco and products not bearing the health warnings required by law. The prosecuting authority had no evidence of actual sales of the articles in question being made: indeed, the premises had passed a number of test purchases aimed at flushing out illegal tobacco sales.

This being the case, the Prosecution had to prove to the requisite criminal standard of proof, beyond all reasonable doubt, that the company and its director were aware that the illicit tobacco was on the premises and were keeping it there with a view to selling it, or that they had failed to exercise all due diligence in allowing it to be there. We were instructed to enter not guilty please to all charges on the basis of the employee’s claim that he had been bullied by a third party, without anyone else’s knowledge, into stashing the tobacco at the premises.

Both the employee and the company director appeared as witnesses at the trial, and their accounts were entirely consistent with everything that had been said previously. The Bench of lay Magistrates listened to all the evidence, which took all day, and concluded that the Prosecution had not proved its case beyond all reasonable doubt. The employee’s explanation was sufficiently credible to cast a doubt upon the guilt of the company and its director. Not guilty verdicts were returned in respect of all charges and we were able to recover some £14,000 in costs against Trading Standards.

It is somewhat unusual for costs to be recovered against a Local Authority upon a successful defence of a prosecution, as it only happens when the Court considers that the Authority has acted unreasonably in pursuing the case. Here, because the flaws in the evidence and the Defence’s explanation had been repeatedly set out to the Council’s lawyers in correspondence in the run-up to the trial, the Court felt that proceeding with the prosecution had been unreasonable.

Our clients were, understandably, delighted with the result in the Magistrates’ Court, but there remained the question of the review proceedings, which were listed for hearing some weeks afterwards. It came as something of a surprise, then, when, a couple of days after the acquittals, the Local Authority got in touch to say that Trading Standards were prepared to abandon the review, as long as our clients would consent to a condition being placed on the premises licence to the effect that the stock room be covered by CCTV. As mentioned above, this had already been put in place and so this represented an excellent result for our clients, who were otherwise potentially facing the revocation of the licence.

The simple fact of the acquittals on the criminal charges did not, of itself, prevent the review from going ahead. As noted above, the standard of proof in a criminal case is extremely high – beyond all reasonable doubt, or “99.9% certainty of guilt”- in order to secure a conviction. The same high standard does not apply in civil cases, which are decided on the balance of probabilities, otherwise known as the principle of “more likely than not”. Although the employee’s version of events in this case was enough to cast sufficient doubt in the minds of the Magistrates, it might not have satisfied the Licensing Committee to their required standard. Furthermore, the Committee might well have felt that the management of the premises generally demanded scrutiny and standards to be addressed, due to the fact that, even on the Defence case, the employee had been able to stash a large amount of illicit tobacco on the premises without being detected. It is also worth noting that costs are not recoverable at licensing hearings until the matter reaches the appeal stage.

In the event, though, Trading Standards clearly decided to take a pragmatic approach in a case that had already consumed very significant time and resources. It appears that they felt that the introduction of back-of-house CCTV would be sufficient – when taken together with the other measures that our clients had already put in place – to prevent similar problems from arising at the premises in the future. Such pragmatism does not invariably manifest itself in the licensing field, however, and it is worth remembering that an acquittal in a criminal trial does not necessarily preclude a review of the licence being pursued on grounds of crime associated with the premises.

The British have certainly caught the poker bug from their US counterparts. The recent Gambling Prevalence Study published by the Gambling Commission shows that online gambling continues to grow at a rapid pace, and online poker is responsible for a significant part of the figures. Meanwhile, face-to-face poker tournaments are increasingly popular.

By contrast, the Study reports that participation rates in poker played in pubs and clubs are declining. Given the draw nowadays of poker, though, it’s worth considering running a poker night as an alternative, perhaps, to a quiz night, as a means of attracting more customers into your business and persuading them to stay longer.

There are various different ways to run a poker tournament legally, as set out in the Gambling Act 2005 and enforced by the Gambling Commission and your local council.

You can host a poker league for customers, with a maximum stake of £5 per player per game. Combined stakes across all games must not exceed £100 per day, though, and the maximum prize is £100 per game. This includes the value of goods and donated prizes, as well as cash. A poker night will bring additional custom over the bar, but you are not allowed to charge a fee for participating – this includes, for example, having entrants pay a compulsory charge for a meal or a drink during the evening.

Alternatively, you might consider running a poker game and donating the profits to charity. If you do, players must be told what the good cause is, and you can’t charge them more than £8 to play, whether this be as a stake, a participation fee, or the two combined. There’s no limit on the overall stakes from all participants, though, and the value of prizes can be up to £600. Again, this includes cash and money’s-worth in the form of goody-bags or donated items. If you host a series of events where people qualify by playing a number of rounds, the total prizes can amount to as much as £900.

If you have a function room, why not let a group of friends use it to stage their own poker game? You can’t charge for participation or for use of the room, but there are no limits on stakes or prizes and it’s a way of bringing in additional spend. Make sure that the room is properly segregated and monitored, so that it’s not accessible to other customers.

Finally, you could run poker events under temporary use notices on up to 21 days in any 12 month period, in partnership with a company that has a casino operating licence. Unlikely as it may seem, these do happen and bring huge benefits in terms of turnover and publicity.

Poker is certainly a revenue-driver, but the rules surrounding it are complex and the penalties for getting it wrong potentially heavy. It’s always best to get some specialist advice before advertising – let alone running – a poker night, if you want a flush, rather than to fold.

I have a real problem with some converted licences which came over from the previous legislation…can you believe it…10 years ago!

What were we doing 10 years ago? We were trying to hit the deadline of Grandfather Rights to ensure that everyone kept their authorisation after the transfer to the Licensing Act. With the benefit of 10 years worth of hindsight a lot of what we believed/were told at the time has led to some of the issues which cause me concern now.

In the last month I have been looking after a restaurant with nearly 100 conditions and a bar with nearly 200 conditions. Do the operators comply with them all…or know them all? Do the regulatory authorities enforce them all…or know them all? I doubt it.

We have a significant amount of operators around the country who grandfathered the conditions of their old licences on to their premises licences during the period of transition. This means that a significant number of redundant conditions are attached to licences from old Children’s Certificates, Supper Hours Certificates and Special Hours Certificates. Under the old legislation (s77 Licensing Act 1964); to get extended hours the sale of alcohol had to be:

• in a casino;
• premises for which a music and dancing licence was in force, and
• that the whole or any part of the premises is structurally adapted, and bona fide used, or intended to be used, for the purpose of providing for persons resorting to the premises;
• in the case of casino premises, gaming facilities and substantial refreshment, and;
• in the case of any other premises, music and dancing and substantial refreshment, to which the sale of intoxicating liquor is ancillary.

So where does that leave us…in a mess to be honest! There are operators who still do not realise that they have a condition on their licence whereby alcohol should only be sold when ancillary to the provision of music dancing and substantial refreshment. It is the duty of the operator to comply with all of the conditions on their licence…or apply to have them removed.

Most Licensing Authorities have a pool of “preferred conditions” which, in the most enlightened authority areas, change and are modernised through the passage of time. Leeds City Council has produced the Proforma Risk Assessment V7 document which is hugely helpful in this regard.

So what to do…

We can make an application to “modernise” the licence by way of a minor variation or during a full variation. However, this can be frustrated by responsible authorities who have a desperate urge to control. Surely the minimum number of conditions that are required the better for all. Easier to comply….easier to enforce. Not always the case though. I have recently tried to tidy up a licence and was met with requests for additional conditions from the authorities which would have left us with more conditions than we started with!

We also made an application in Liverpool for a convenience store and volunteered a security guard as and when we risk assessed the need to use. The police wanted this as a condition and we went to committee to argue that if we had already traded from a number of licences in the city promoting the licensing objectives with us doing this voluntarily then why did it need a condition on the new licence?

After a good debate with an enlightened and sensible committee we were given a decision that there was no need for this to be a condition on the licence….I wish this was the same throughout the country.

A reminder please:

The S182 Guidance document has a chapter given over to conditions on premises licences. This should be our starting point, applicants/advisors, responsible authorities and Licensing Sub-Committees/advisors. Relevant consideration should be given to the following paras:

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

• must be appropriate for the promotion of the licensing objectives;
• must be precise and enforceable;
• must be unambiguous and clear in what they intend to achieve;
• should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
• must be tailored to the individual type, location and characteristics of the premises and events concerned;
• should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
• should not replicate offences set out in the 2003 Act or other legislation;
• should be proportionate, justifiable and be capable of being met;
• cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and
• should be written in a prescriptive format.

The whole of Chapter 10 should be considered but in particular:

10.10 The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case-by-case basis and standardised conditions which ignore these individual aspects should be avoided….Licensing authorities should, therefore, ensure that any conditions they impose are only those which are appropriate for the promotion of the licensing objectives.

And don’t get me started on British Summer Time…..

This is still a question which generates great debate. I can’t see that we have any great certainty of what falls into the category of an irresponsible drinks promotion.

In my view there are some definitive positions where there would be an irresponsible promotion, some which would not…and a huge grey area. Lawyers like grey areas….

What is an irresponsible promotion?

Anything which breaches the mandatory condition on the premises licence. A breach would mean that the premises licence holder would be committing a criminal offence under s136 of the Licensing Act. .

The mandatory condition states:

• The responsible person shall take all reasonable steps to ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premise.
• In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children –
• a) games or other activities which require or encourage, or are designed to require or encourage, individuals to–
• (i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or
• (ii) drink as much alcohol as possible (whether within a time limit or otherwise);
• (b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic (other than any promotion or discount available to an individual in respect of alcohol for consumption at a table meal, as defined in section 159 of the Act);
• (c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less;
• (d) provision of free or discounted alcohol in relation to the viewing on the premises of a sporting event, where that provision is dependent on–
• (i) the outcome of a race, competition or other event or process, or
• (ii) the likelihood of anything occurring or not occurring;
• (e) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner.
• The responsible person shall ensure that no alcohol is dispensed directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability).

So if you fall in one of the prescriptive categories above then in the circumstances you would be carrying out an irresponsible drinks promotion and capable of being prosecuted (£20,000 fine and or 6 months imprisonment). .

Guidance has been given by the Home Office and can be found at the following link: .

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

What is not an irresponsible promotion?.

I would advise that any promotion which does not specifically fall within one of the above prescriptive definitions, and does not have any effect on the licensing objectives, would not fall in to that category. .

The “Grey Area”.

Now it gets interesting…..

What about heavily discounted nights at venues? I would suggest that if these are managed properly, and people are not sold more alcohol if they clearly have had enough to drink then they are permissible. I would always advise that there is good staff training and risk assessments in place to ensure all staff are aware of the potential issues. .

What about Beer Pong? Hugely popular with a number of venues now. Again, I would suggest that with proper parameters that this is not immediately a breach of the mandatory condition. I take the view, therefore, when reading the specific wording of the mandatory conditions that Beer Pong does not contravene the mandatory condition. Clearly the consumption of alcohol by individuals whilst they are playing is something that should continue to be monitored by staff, but I do not think that the game could be seen to be breaching the mandatory condition. .

I have just heard that there was some very zealous policing of some premises over the weekend where, in my view, the police were wrong with their approach. I understand that premises were threatened with immediate closure (no power) if they did not cease the promotion (which did not per se breach the mandatory condition). .

If you are an operator of licensed premises or an enforcement officer and you are unsure on any of the above then I would be delighted to discuss this issue with you.