Gambling Commission v GK: [2016] UKUT 50 (AAC) : [2018] AACR 6
Upper Tribunal Administrative Appeals Chamber decision by Judge Levenson on 29 January 2016.
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Judicial Summary
Reported as [2018] AACR 6
Gambling – extent of the Gambling Commission’s powers in refusing an operating licence – relationship between operating licence and local authority premises licence
A brewery chain (GK) applied to the Gambling Commission under Part 5 of the Gambling Act 2005 for operating licences authorising them to provide facilities for playing unlimited stake and prize bingo in up to eight of their public houses as a pilot project. Under the Gambling Act an operator must hold both an operating licence and a premises licence to offer facilities for full commercial bingo other than remotely. GK would still have to apply to the relevant local licensing authority under Part 8 of the Act for the necessary premises licence authorising particular premises to provide that facility. Although the Commission’s Regulatory Panel was satisfied as to the suitability and competence of GK and persons relevant to the applications to offer the proposed licensed gambling activities it nevertheless refused the operating licence applications because it was concerned about the development of commercial bingo in pub premises and considered that it would be harmful to the statutory licensing objectives to provide gambling in pubs as proposed. The statutory licensing objectives set out in section 1 of the 2005 Act are (a) preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime, (b) ensuring that gambling is conduced in a fair and open way and (c) protecting children and other vulnerable persons from being harmed or exploited by gambling. The First-tier Tribunal (F-tT) upheld GK’s appeal, holding that once the Regulatory Panel had accepted that GK were suitable and competent to offer the proposed gambling activities it was not open to it to refuse the applications because of its concern about the premises and that in doing so the Panel was trespassing on territory which the Gambling Act assigned to local licensing authorities. The Commission successfully appealed to the Upper Tribunal (UT). GK appealed to the Court of Appeal arguing that the UT had erred in its interpretation of the Gambling Act, in finding that the F-tT‘s decision was wrong and had failed to address its alternative grounds for upholding the F-tT’s decision.
Held, dismissing the appeal, that:
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the UT Judge had not erred either in his interpretation of the Gambling Act or in finding that the decision of the F-tT was wrong in law (paragraph 56);
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the Commission was the national gambling regulator and had a wide discretion in exercising its statutory function to determine an application for an operating licence under section 70 of the Gambling Act; in considering a novel operating model for gambling it was required to consider whether that model was or was not consistent with the licensing objectives (paragraph 44);
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the Commission and local licensing authorities had discrete functions under the Gambling Act, local licensing authorities did not have procedural exclusivity in respect of premises and the Commission was bound to consider the operating environment in which the applicant for an operating licence proposed to offer gambling facilities: Lethem v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1549) (paragraphs 46 to 47);
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the Commission was required to, and did, consider the operating model proposed by GK. Operating models are of infinite variation and the Commission was not required to put the applications on hold whilst it developed and then consulted on a general policy in respect of gambling in premises where alcohol was readily available (paragraphs 68);
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in the context of a proposal for full commercial bingo in a busy working pub, the Regulatory Panel could draw upon its own expertise and experience of the relationship between gambling and alcohol and historic data and reports such as the Budd Report. It was entitled to concur with, and place weight on, the view of the Commission’s officers as to the “different expectations of those frequenting pub or bingo premises as to their primary purpose” upon which the recommendations of the Budd Report were based. It was clearly open to the Panel to conclude that visitors to a pub, after consuming alcohol, might be vulnerable to available high stake gambling (paragraph 72);
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the Regulatory Panel had considered the proposal in the light of the statutory licensing objectives and it was well within its discretion to consider that the novel operating model proposed by GK was not reasonably consistent with the pursuit of those licensing objectives (paragraph 71).
Last updated 17 December 2019 + show all updates
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Court of Appeal decision selected for reporting as [2018] AACR 6
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First published.