Smith & Monkcom: The Law of Gambling

Description

DELETE Preface to the fourth edition Table of statutes Table of cases Introduction The pre-Gambling Act framework Introduction Early gambling legislation Objectives of earlier legislation Early betting and gaming legislation The Betting and Gaming Act 1960 Gaming machines Gaming, gaming machines and the 1960 Act Lotteries British Gambling Industry The betting industry Bookmaking industry The gaming industry (excluding gaming machines) The gaming machine industry Lotteries The coming of the Gambling Act 2005 Attitudes Demand The technological revolution Lotteries Chapter 1 Introduction to the Gambling Act 2005 The coming of the Gambling Act 2005 Interpretation of the new legislation The basic structure of the Act The licensing objectives Definition of the licensing objectives Preventing crime and disorder Illegal gambling Licensing powers Review Money laundering Fraud Disorder ‘Fair and open’ gambling Protecting children and vulnerable persons Operating licences – further provisions Remote gambling Application Requirement of operating licence Types of operating licence Casino operating licence Bingo operating licence General betting operating licence Pool betting operating licence Betting intermediary operating licence Gaming machines Personal licences Appeals in connection with operating licences and personal licences Premises licences Appeals against decisions of licensing authorities Temporary use notices Gaming machines Category D Category C Category B Category A Other use of gaming machines Incidental gaming Lotteries – the previous position Societies lotteries Local lotteries External lottery managers Lotteries under the Gambling Act 2005 Advertising of gambling Enforcement of gambling contracts Devolution Scottish devolution Welsh devolution Chapter 2 Some fundamental terminology Gambling: the primary definition Betting: general Wagers Betting and choice Betting – section 9 Prize competitions: section 11 Betting with bookmakers at fixed odds Spread bets and similar transactions: section 10 Pool betting Lotteries and betting Wagering and lotteries prior to the Gambling Act 2005 Betting and lotteries under the Gambling Act 2005 Gambling Act 2005: section 18 Betting intermediary Gaming Playing a game of chance – general principles Some special cases Playing a game – the case law Section 6 definition ‘Casino games’ and ‘equal chance gaming’ – sections 7 and 8 Betting and gaming – section 16 Lotteries and gaming – section 17 Remote gambling – section 4 Providing facilities for gambling – section 5 Section 5(1) Exemptions – section 5(2) Section 5 – some questions Chapter 3 The Gambling Commission Introduction Overview of the Gambling Commission’s functions The Gambling Commission and Licensing Authorities The Gambling Commission’s statutory powers and duties Part 2 of the 2005 Act The Commission’s constitution Promotion of the licensing objectives Codes of practice Guidance to licensing authorities Advice to Secretary of State Compliance and investigation and prosecution of offences Information powers Consultation Parts 5 and 6 of the 2005 Act Part 15 of the 2005 Act Chapter 4 General offences Introduction Efficacy of the regulatory system Furtherance of the licensing objectives The offences under Part 3 of the Gambling Act 2005 Offenders and prosecutors The time limit for prosecutions under the Gambling Act 2005 Section 33 – providing facilities for gambling The offence The exceptions Sentencing powers Section 37 – using premises, or causing or permitting premises to be used, to provide facilities for certain forms of gambling activity The offence The exceptions Sentencing powers Section 41 – gambling software The offence Sentencing powers Section 42 – cheating The offence Sentencing powers Section 43 – ‘chain-gift schemes’ The offence Sentencing powers Section 44 – the provision of unlawful facilities abroad The offence Sentencing powers Chapter 5 Offences relating to children and young persons Introduction The offences under Part 4 of the Gambling Act 2005 Offenders and prosecutors Statutory defences Saving when children and young persons are used in enforcement operations The time limit for prosecutions under the Gambling Act 2005 Sentencing powers Section 46 – inviting, causing or permitting a child or young person to gamble The offence The exceptions Section 47 – inviting or permitting a child or young person to enter certain premises The offences Section 48 – gambling by a young person The offence The exceptions Section 49 – entry by a young person to certain premises The offences Section 50 – the provision of facilities for gambling by a young person The offence The exceptions Section 51 – employing a child or young person to provide facilities for gambling The offence The exceptions Section 52 – employing a child to provide facilities for gambling in connection with a lottery or football pools The offence Section 53 – employing a child to perform any function on bingo and club premises The offence Section 54 – employment of a child or young person to perform any function on premises with gaming machines The offences Section 55 – employment of a child or young person in certain premises in respect of which a premises licence has effect The offences The exceptions Section 56 – inviting, causing or ­permitting a child to participate in a lottery The offence The exceptions Section 57 – inviting, causing or ­permitting a child to participate in ­football pools The offence Section 58 – failing to return a stake to a child or young person, or giving a prize to a child or young person The offence Chapter 6 Operating licences Introduction The operating licence: Parts 3 and 5 of GA 2005 Part 3: the operating licence as authorisation Operating licences: general application Operating licences: lotteries and gaming machines Territorial extent: remote gambling equipment Part 5: Kinds of operating licence The ten basic kinds of operating licence Remote gambling Combined operating licence Applying for an operating licence General: the Commission’s approach to licensing Suitability and criminal convictions The licensing objectives The Act’s ethos Demand Club membership The application Consideration of applications: general principles Substantive principles The licensing objectives The applicant’s suitability: criteria Integrity Competence Financial and other circumstances The applicant’s suitability: forming an opinion The suitability of equipment to be used in connection with the proposed activities Applications for a non-remote casino operating licence Consideration of applications: criminal convictions Consideration of applications: procedure Determination of the application Licence conditions Introduction General conditions imposed by the Commission Individual conditions imposed by the Commission Conditions imposed by the Secretary of State Scope of powers to attach conditions Conditions applying to all operating licences Credit and inducements Definitions Controls Compliance with code of practice Return of stakes to children and young persons Restrictions on conditions relating to premises Equipment other than gaming machines Gaming machines Membership Information Rules for particular kinds of licence Maintenance of the operating licence Annual fee Change of circumstance Change of corporate control Variation of an operating licence Amendment of licence Register of operating licences Copy of an operating licence Production of an operating licence Conviction Duration of an operating licence Power to limit duration Surrender and lapse of an operating licence Forfeiture of an operating licence Regulation Review Regulatory powers Levy Chapter 7 Personal licences Introduction The relationship between operating licences and personal licences General requirement for a personal licence Application of Part 5 of the Gambling Act 2005 to Part 6 of the Act Applying for a personal licence Application requirements Consideration of the application – general principles Consideration of the application – criminal record of the applicant Significance of a relevant offence Consideration of the application – procedure Determination of the application The attachment of conditions to personal licences General conditions attached by the Gambling Commission Individual conditions attached by the Gambling Commission Secretary of State’s power to attach conditions to personal licences Scope of powers to attach conditions Automatic condition – compliance with code of practice Automatic condition – return of stakes to children Maintenance of personal licences Fees Change of circumstance Applying to vary a personal licence Amendment of a personal licence Maintenance of a register Copy of personal licence Production of personal licence Criminal conviction of holder of personal licence Offence Prosecutors Offence Prosecutors Regulation Review Regulatory powers Suspension Revocation Financial penalty Duration of personal licences Surrender Lapse Forfeiture Revocation Chapter 8 Appeals Appeals against decisions of the Gambling Commission Jurisdiction Procedure Time limits, formalities etc Fees Effect of appeal The hearing Costs Appeals from the First-tier Tribunal Appeals against decisions of a licensing authority Introduction Jurisdiction Time limits Effect of appeal Procedure at the hearing The nature of the appeal and relevance of the decision below Powers on determination Costs Chapter 9 The licensing authority: constitution and procedure Licensing authority functions Premises licences Temporary use notices Miscellaneous functions The local authority context Local authorities’ general powers of delegation and ‘executive arrangements’ Delegation under the GA 2005 Conduct of committee members Proceedings of licensing committees and sub-committees Chapter 10 Premises licences The functions of premises licensing Requirement for a premises licence Exceptions to the requirement for a premises licence The licensing authority Three-year licensing policy Revisions Consultation on policy Consequences of defective consultation Miscellaneous section 25 guidance Publication and advertisement of the policy statement Licensing Authority Fees Applications for premises licences Procedure on applications Defective notice of application Defective publication Split premises and use of premises for their ‘primary purpose’ Responsible authorities and interested parties Determination of application Principles to be applied by the licensing authorities in the discharge of their functions Licensing policy: basic principles Interpretation of policy Licensing principles and policy specific to the GA 2005 Non-section 153 functions Licensing authority functions subject to section 153 principles The duty to aim to permit Codes of practice and section 25 Guidance Demand and casino premises licences Planning permission and building approval Exclusivity of section 153 factors Premises licence conditions Conditions imposed by the GA 2005 Prohibited conditions Mandatory conditions Default conditions and individual conditions Mandatory and default conditions laid down by regulation Conditions imposed by licensing authorities Steps to be taken on grant of application Steps to be taken on rejection of application Particular types of premises Casinos Bingo premises licences Adult gaming centre premises licences Family entertainment centre premises licences Betting premises licences Duration of premises licence The licence Variation of premises licence Transfer of premises licence Termination of premises licences Review of a premises licence Provisional statement Appeals Procedure Chapter 11 The temporary use of premises Introduction Prohibitions and restrictions on temporary use notification Certain premises Delegation of licensing authority functions Referral back to the licensing authority The temporary use notification procedure Form of notice Giving a temporary use notice Licensing authority to acknowledge receipt of the temporary use notice Objections to the temporary use notice Hearing of objections Modification of the temporary use notice by agreement Counter-notice Dismissal of objection(s) to the temporary use notice Endorsement of notice Withdrawal of temporary use notice Display and production of temporary use notices Display of notice Production of notice Offence Maintenance of a register Chapter 12 Clubs, pubs and fairs Introduction The associations to which Part 12 applies Members’ clubs Commercial clubs Miners’ welfare institutes Premises in respect of which an ‘on-premises alcohol licence’ has effect Travelling fairs Equal chance gaming by some associations Which offence-creating sections of the GA 2005 are disapplied? High turnover bingo Club gaming permits Which offence-creating sections of the GA 2005 are disapplied? High turnover bingo Applications for club gaming permits Club machine permits Which offence-creating sections of the GA 2005 are disapplied? Applications for club machine permits Exempt gaming by some premises in respect of which an on-premises alcohol licence has effect Which offence-creating sections of the GA 2005 are disapplied? High turnover bingo Gaming machines – automatic entitlement of some premises in respect of which an on-premises alcohol licence has effect Which offence-creating sections of the GA 2005 are disapplied? Licensed premises gaming machine permits Which offence-creating sections of the GA 2005 are disapplied? Applications for licensed premises gaming machine permits Gaming machines at travelling fairs Which offence-creating sections of the GA 2005 are disapplied? Schedule 12 – club gaming permits and club machine permits Introduction Applying for a club gaming permit or a club machine permit Fast-track procedure for holder of club premises certificate Form and maintenance of permits Duration, lapse, cancellation and forfeiture of permits Renewal of permits Appeals Maintenance of a register Exercise of functions by licensing authority Schedule 13 – licensed premises gaming machine permits Introduction Applying for a licensed premises gaming machine permit Form and maintenance of permits Duration, cancellation and forfeiture of permits Transfer of permits Appeals Maintenance of a register Chapter 13 Betting Developments before GA 2005 General betting operating licence Pool betting operating licence Betting intermediary operating licence Betting intermediary (trading room only) operating licence Betting premises licence Primary gambling activity Power of Gambling Commission to void bet Chapter 14 Gaming Casinos Introduction Categories of casino The new licensing regime Casino games Card room and other games of equal chance Poker Virtual games Advertising Bingo Introduction Types of bingo Cash bingo Prize bingo Bingo authorisations Gaming machines Application for prize gaming permit and prize gaming conditions Bingo operating licence Premises licences – transitional provisions Applications for premises licences – existing operators Premises licences – new operators Other regulations Premises licences conditions Mandatory conditions set out in the Act Mandatory conditions on bingo premises licences set out in regulations under section 167 Default conditions on bingo premises licences Individual conditions imposed by the licensing authority Removal of conditions from bingo premises licences Conditions which do not apply to bingo premises licences by way of exemption under the Act Conditions not permitted to be attached to bingo premises licences under the Act Matters to be dealt with by way of conditions attached to operating licences Matters to be dealt with by way of codes of practice Exempt and permitted gaming (bingo in private clubs) Bingo in alcohol licensed premises Bingo equipment Multiple and linked bingo Children and bingo Demand Advertising Impact of the Health Act 2006 relating to smoke-free premises Chapter 15 Lotteries Introduction Early English lotteries English lotteries 1694–1826 The elements of a lottery Lotteries at common law Definition of a lottery under the GA 2005 Types of lottery Lotteries and competitions Payment The allocation of prizes Wholly on chance Assessing the character of a scheme Types of scheme No genuine skill etc requirement Significant proportion The attitude of the Commission Complex lotteries Wholly on chance Spot the ball competitions Tie-breakers Snowball, pyramid, chain-gift and similar schemes The permitted lotteries Non-commercial society lotteries Society lotteries Large society lotteries Local lotteries An operating licence from the Commission Mandatory conditions of lottery operating licences Commission conditions Post Regulations Lottery machines The exempt lotteries Small society lotteries Registration of a society Appeal Cancellation Annual fee Records Incidental non-commercial lotteries Private lotteries Customer lotteries Advertisements and exempt lotteries Lottery offences Promoting a non-exempt lottery without a licence Facilitating a non-exempt lottery without a licence Misusing the profits of a lottery Misusing the profits of an exempt lottery Breaches of condition of small society lotteries Children and lotteries Penalties Foreign lotteries External Lottery Managers Chapter 16 The National Lottery Introduction The licensing system The Gambling Commission The section 5 licence The section 6 licence Licence to promote the ‘National Lottery Game’ Licences to promote instant lotteries Licences under sections 5 and 6: prospective amendments Licences under sections 5 and 6: further provisions Variation of conditions in licences Enforcement of conditions in licences Revocation of licences granted under sections 5 and 6 Procedure on revocation Appeals against revocation Financial penalties for breach of conditions in licences Appeals against financial penalties Annual levy Regulations as to the promotion of lotteries forming part of the National Lottery Directions to the National Lottery Commission under section 11 of the National Lottery etc Act 1993 Further controls relating to the National Lottery False representations as to the National Lottery Control of betting on the National Lottery Control of advertising relating to the National Lottery Protection of confidentiality of prize winners’ identity Distribution of National Lottery proceeds The National Lottery Distribution Fund Distribution of funds to the distributing bodies Payment to the distributing bodies Distribution by the arts councils and the British Film Institute Distribution by the sports councils Distribution by the Trustees of the National Heritage Memorial Fund Distribution by the Big Lottery Fund Delegation by distributing bodies of their powers of distribution Joint schemes for distribution of money by distributing bodies Distribution of funds: publicity Strategic plans for distributing bodies Devolution Draws/schemes based on the National Lottery Lotteries/schemes using the National Lottery draw ‘Second chance’ schemes Chapter 17 Remote gambling Introduction The definition of remote gambling Remote gambling equipment The new territorial application provisions The need for a licence Betting Gaming Software Personal licences Responsibilities of licence holders License Conditions and Codes of Practice Technical Standards Testing Advertising Chapter 18 Advertising Introduction Regulatory framework for advertising Territorial application of regulations and ability to advertise Non-broadcast advertisements Limits on ASA Powers CAP Code General rules Gambling-specific rules Prize promotions Adjudications Lotteries Television and radio advertising BCAP codes Television and radio advertising Television scheduling and sponsorship Gambling Industry Code for Socially Responsible Advertising Warning and educational messages Television and radio advertisements Sponsorships Review Spread betting adverts Enforcement Recent adjudications and guidance by CAP and BCAP General grounds of taste Connection with sexual prowess Appeal to minors Gambling as a solution to personal issues Misleading advertisements Social games Affiliates Offences Unlawful gambling Lotteries Conclusion Organisations relevant to the advertising of gambling Chapter 19 Gambling and tax Part 1 – Direct tax Taxes on income Taxes on gains Part 2 – VAT The exemption from VAT Calculation Part 3 – ‘Point of consumption’ gambling duties Introduction Primary legislation Secondary legislation and notices General betting duty The current regime General betting duty on ‘general bets’ General betting duty on ‘spread bets’ General betting duty on Chapter 1 pool bets General betting duty levied on bet-brokers and betting exchanges Pool betting duty Remote gaming duty Point of consumption gambling duties – administration Security and UK representatives Record keeping Penalties Fraudulent evasion Part 4 – Other gambling duties Gaming duty Charge to duty Bingo duty Lottery duty Amusement machine licence duty Machine games duty Calculation of the duty Part 5 – Horserace betting levy Levy schemes Payments on account of levy Recent developments Chapter 20 Contractual aspects of gambling Introduction and definitions The enforcement regime under the Gambling Act 2005 Formation of a contract General ‘Honour clauses’ Consideration Time of making the contract Distance selling E-commerce Concurrent duty of care arising out of voluntary self exclusion agreements, or generally? Unfair contract terms – Unfair Terms in Consumer Contracts Regulations 1999; Consumer Rights Act 2015 Unfair contract terms – alternative dispute resolution clauses Arbitration clauses Expert determination or other ADR Unfair Contract Terms – Unfair Contract Terms Act 1977 Gambling upon objectionable subject matter Illegality Introduction Gambling legislation as a class-protecting statute Illegality – participation of children and young persons in gambling Children as agents Offences by gamblers Injunctions against organised cheating Illegality under foreign law Illegal bets – money deposited with stakeholder Use of stolen or unlawfully obtained funds for gambling Restitution for third parties Liability for ‘knowing receipt’ Claims to prizes and contributions in illegal lotteries and chain gift schemes Recovery of prizes in illegal lotteries Recovery of contributions to an illegal lottery or chain gift scheme Claims in respect of illegal gambling – professional conduct issues Gambling through agents Lawful gambling through agents Illegal gambling through or by agents Gambling on credit Meaning of credit Cheques as credit Lawful credit Credit by payment of gambling debts – ‘in connection with’ gambling Illegal credit Effect of illegal credit on otherwise lawful gambling Credit provided for gambling abroad Securities in respect of gambling or credit for gambling Lawful lotteries, prize draws and skill competitions as contracts Lotteries Instant lotteries Prize draw competitions Skill competitions Sweepstakes or ‘sweeps’ Contribution lotteries – quasi-contractual analysis Contribution lotteries – trust analysis Determination of winners of sporting events Determination of winners in lotteries and prize draws Lotteries on sporting events Determination by a promoter or third party Implied terms and restrictions on a ‘decision is final’ clause Erroneous declaration of winners False prizes Conduct of a lottery or prize draw Determination of winners of skill ­competitions Lotteries and prize draws – unclaimed prizes Conclusion Lawful and unlawful contribution lotteries Non-contribution lotteries: rights and liabilities of promoter and participants Gambling and family law Chapter 21 Gambling syndicates Introduction Forms of syndicate Legal rights and liabilities Establishing an agreement Rights and liabilities between syndicate members In contract In trust Rights to share in the winnings when the member has not paid Rights and liabilities between the syndicate organiser and the members Generally Syndicate organisers gambling on their own account Formal syndicate agreements Insurance Chapter 22 Prize gaming Introduction Bingo licensed premises Adult gaming centres and licensed family entertainment centres Prize gaming permits and family entertainment centre gaming machine permits Definition of prize gaming Conditions for prize gaming First condition Second condition Third condition Fourth condition Permitted prize gaming Prize gaming permits Prize gaming and entertainment centres Non-licensed family entertainment centres Bingo halls Fairs Power to restrict exemptions Chapter 23 Private and non-commercial gaming and betting Betting Private betting Workers’ betting Private gaming ‘Domestic gaming’ Residential gaming Non-commercial gaming Conditions for non-commercial prize gaming Conditions for non-commercial equal-chance gaming Non-commercial betting Chapter 24 Licensing Boards and some Scottish aspects of gambling Gambling remit of the Licensing Boards Administration of Licensing Boards Licensing Board membership The convener The clerk Meetings Disqualifications Training Delegation of functions Policies and guidelines Investigation and prosecution of offences Appeal process in Scotland Stay pending appeal Further appeal Temporary use notices Gambling and devolution Chapter 25 Gaming machines History Overview of the Gambling Act 2005 Gaming machine definition under the Gaming Act 1968 A gaming machine under the Gambling Act 2005 Meaning of machine Exceptions to the gaming machine definition Categories of gaming machine Category A Category B1 Category B2 Category B3 Category B3A Category B4 Category C Category D Available for use Prizes Charge for use Skill with prizes machines Gaming machine licences Gaming machine operating licences Linked licences Personal licences Premises licence Single-machine supply and maintenance permits ‘Where machines may be situated’ Machines in casinos Bingo halls Betting premises Fairs Adult gaming centres (‘AGCs’) Family entertainment centres (‘FECs’) Licences Gambling Commission’s Licence Conditions and Codes of Practice Premises licences for AGCs and licensed FECs Unlicensed family entertainment centres Application Consideration of the application Form of permit Duration Renewal Maintenance of the permit Appeal process Register Offences Offences under sections 37 and 242 Exceptions Fairs Section 240 regulations Manufacture, supply etc Definitions Linked machines Credit Penalties Children and young persons Chapter 26 Enforcement of the regulatory system of the Gambling Act 2005 Introduction Powers of entry Powers following entry Enforcement officers, authorised persons etc Enforcement officers Authorised persons Authorised local authority officers General Compliance and enforcement policy guidance Safeguards Dwellings Timing of the exercise of a power under or by virtue of Part 15 Evidence of identity and authority Exercise of powers in relation to records Information Securing premises after entry Powers Compliance Suspected offence Inspection of gambling Operating licence holders Family entertainment centres Premises licensed for alcohol Prize gaming permits Members’ clubs, commercial clubs and miners’ welfare institutes Licensed premises Lotteries: registered societies Temporary use notices Production of authorisations Offences under Part 15 of the Gambling Act 2005 Offenders and prosecutors The time limit for prosecutions under the Gambling Act 2005 Chapter 27 Money laundering Introduction What is money laundering? Part 7 of the Proceeds of Crime Act 2002 The money laundering offences Criminal property Authorised disclosure Arrangements What sort of factors are likely to justify suspicion of money laundering? The regulated sector Tipping off The Money Laundering Regulations 2007 The Terrorism Act 2000 Civil liability for money laundering Chapter 28 Gambling and planning The need for planning permission Use Classes Order The planning application The decision-making process National planning policy and planning guidance Reasons The resolution to grant planning permission and the grant of permission The local authority decision-maker Estoppel by representation Planning control Powers of entry onto land Making preliminary enquiries Means of planning enforcement Temporary stop notice Enforcement action Stop notice Breach of condition notice Injunctive relief Index