Greene King Brewing and Retailing Ltd and Another v The Gambling Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Simon,Lady Justice Arden |
| Judgment Date | 25 May 2017 |
| Neutral Citation | [2017] EWCA Civ 372 |
| Date | 25 May 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2016/1568 |
[2017] EWCA Civ 372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
UPPER TRIBUNAL JUDGE HOWARD LEVENSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Simon
and
Lord Justice Hickinbottom
Case No: C3/2016/1568
Susanna Fitzgerald QC and Owain Draper (instructed by Fraser Brown Solicitors) for the Appellant
Philip Kolvin QC and Christopher Knight (instructed by Nicholas Hawkings, Solicitor to the Gambling Commission) for the Respondent
Hearing date: 6 April 2017
Approved Judgment
(as Corrected)
Introduction
The Appellants ("Greene King") own and operate public houses.
They wish to provide facilities for playing unlimited stake and prize bingo in their pub premises; and so they applied to the Respondent ("the Commission") under Part 5 of the Gambling Act 2005 ("the Act") for operating licences authorising them to provide such facilities ("operating licences"), in up to eight of their pubs, in what was intended to be a pilot project. Even with such licences, before providing bingo in any pub, Greene King would still have to apply to the relevant local licensing authority under Part 8 of the Act for the necessary licence authorising particular premises to provide that facility ("a premises licence").
On 12 March 2014, following an earlier hearing, the Regulatory Panel of the Commission ("the Panel") was "satisfied that as to the suitability and competence of [Greene King], and persons relevant to the applications, to offer the proposed licensed gambling activities"; but, nevertheless, refused the licence applications, because it considered that it would be harmful to the statutory licensing objectives to provide gambling in pubs as proposed.
Greene King appealed to the First-tier Tribunal (General Regulatory Chamber), where, on 2 December 2014, the Chamber President, Judge Nicholas Warren, allowed the appeal.
However, on 29 January 2016, in the Upper Tribunal (Administrative Appeals Chamber), Upper Tribunal Judge Howard Levenson allowed the Commission's further appeal; but he later granted Greene King permission to appeal to this court.
Before us, Susanna Fitzgerald QC and Owain Draper appeared for the Appellants, and Philip Kolvin QC and Christopher Knight appeared for the Commission. Ms Fitzgerald also appeared for Greene King before the Panel, the First-tier Tribunal and the Upper Tribunal. We were grateful for the submissions of both parties; and, although this judgment focuses upon those of the Appellant, we have been considerably assisted by those made on behalf of the Respondent.
At the heart of this appeal is a short point of statutory construction. Ms Fitzgerald submits that, when exercising its discretion as to whether to grant an operating licence, the role of the Commission is limited by the Act to considering the suitability and competence of the operator. Whilst she accepts that that may involve some consideration of the proposed operating environment, she submits that the suitability of premises is essentially a matter for local licensing authorities when considering premises licenses. By refusing operating licences on the basis that Greene King proposed to provide bingo facilities in pubs, the Commission acted outside its powers.
The Law
The Act is at the centre of a statutory scheme which regulates all gambling is this country. It was enacted following lengthy consultation and consideration, notably in the Report of the Gaming Review Body (July 2001) chaired by Sir Alan Budd ("the Budd Report"), which set out the policy foundations for the new legislation; and a Government White Paper entitled "A Safe Bet for Success" (26 March 2002) ("the White Paper"). In this judgment, all statutory references are to the Act, except where otherwise appears.
Generally, under the Act, unless excepted or authorised by licence, it is a criminal offence to provide facilities for gambling, or to provide premises for such a purpose.
About the former, it is an offence for a person to provide facilities for gambling, unless an exception applies (section 33). Two exceptions are relevant to this appeal.
i) It is not an offence if the person holds an operating licence authorising the particular gambling activity, and the activity is carried on in accordance with the terms and conditions of the licence (section 33(2)). An operating licence may authorise gambling activity remotely, or non-remotely in premises.
ii) Where premises with a bar have a licence under Part 3 of the Licensing Act 2003 for the supply of alcohol for consumption on the licensed premises ("an on-premises alcohol licence", or simply "on-licence"), then, at times when it is permitted to serve alcohol under the licence, no offence is committed where facilities for equal chance gaming are provided, and (i) there is no participation fee, (ii) no amount is deducted or levied from the sums staked or won, (iii) a game played on one set of premises is not linked with a game played on another set of premises, (iv) children and young persons are excluded from participation, and (v) the gaming satisfies prescribed limits on the amount that may be staked and the amount or value of the prize (sections 277–279). Subject to exceptions irrelevant to this appeal, regulation 2 of the Gambling Act 2005 (Exempt Gaming in Alcohol-Licensed Premises) Regulations 2007 (SI 2007 No 1940) prescribes a limit on the amount that may be staked on any game of chance to £5. Unless the operator holds an operating licence, section 281 limits the application of these exceptions insofar as they would otherwise permit "high turnover bingo played during a high turnover period", essentially defined in terms of an aggregate of stakes or prizes of £2,000 over a seven-day period. The on-licence holder has an obligation – enforceable by criminal sanction – to notify the Commission as soon as reasonably practicable after a "high turnover period" commences, unless he is also the holder of a bingo operating licence (although he does not need also to hold a bingo premises licence: see below) (section 281(6)).
Consequently, a pub owner/operator may provide facilities for low-stake and low-value prize bingo merely by having an on-licence; but, if he wishes to offer facilities for full commercial bingo with higher, unlimited stakes and prizes ("full commercial bingo"), then he needs a bingo operating licence.
An operating licence authorises the licensee to provide facilities for full commercial bingo in a specified number of premises (sections 65(2)(b) and 84(1)(b)), but it does not permit the provision of such facilities in any particular premises (section 65(3)). For that, an application for a premises licence must be made to the local licensing authority under Part 8 of the Act. A person cannot apply for a premises licence unless he already holds (or has an undetermined application for) an operating licence (section 159(3)).
Therefore, to offer facilities for full commercial bingo other than remotely, the operator must hold both an operating licence and a premises licence. He also needs to ensure that relevant individuals hold a third type of licence, not relevant to this appeal, namely a personal licence issued in accordance with Part 6 of the Act.
Section 20 establishes the Commission as a national body with oversight over gambling policy and regulation. By section 22:
"In exercising its functions under this Act the Commission shall aim –
(a) to pursue, and wherever appropriate to have regard to, the licensing objectives, and
(b) to permit gambling, in so far as the Commission thinks it reasonably consistent with pursuit of the licensing objectives."
"The licensing objectives" are set out in section 1:
"In this Act a reference to the licensing objectives is a reference to the objectives of –
(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 conducted in a fair and open way, and
(c) protecting children and other vulnerable persons from being harmed or exploited by gambling."
Section 22, read with section 1, clearly gives the Commission a wide – but not, of course, limitless – discretion in relation to the exercise of its functions, and particularly as to the types of gambling operations it permits as being, in its view, "consistent with pursuit of the licensing objectives". That is unsurprising. Given the commercial interest and ingenuity of those who wish to operate gambling operations, the ever-evolving technological and business models, and the infinite potential variety of means and environments for gambling, it would be impossible for the statutory scheme to regulate expressly and specifically for every possible gambling operation. The statutory scheme therefore sets out three licensing objectives, against which the Commission are required to measure any novel proposal, of which full commercial bingo operating in pubs is but one.
The Act assigns a number of functions to the Commission, by which, as national regulator, it pursues the licensing objectives. It has an enforcement role, involving the investigation and prosecution of offences under the Act (section 28). It has a duty to give advice to the Secretary of State in respect of matters related to gambling (section 26). After consultation, it is required to issue codes of practice about the manner in which facilities for gambling are to be provided (section 24), and guidance to local licensing authorities as to the manner in which they are to exercise their...
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