In a key judgment, the Court of Appeal has ruled on the power of the Gambling Commission to refuse operating licences for bingo in pubs.
Greene King, which runs 3,000 pubs, wanted an operating licence to provide facilities for bingo. The licence would then have allowed it to apply to licensing authorities for premises licences for individual pubs. After a long application process, the Commission ruled that while Greene King was a suitable operator, its business model was liable to undermine the licensing objectives. This was because unlimited stake and prize commercial bingo, with £500 gaming machines, ought to be provided in dedicated gambling environments and not as ancillary attractions in pubs.
Greene King's case was that premises licences were for licensing authorities, and the Gambling Commission could not use its operating licence powers to prevent Greene King applying for such licences. Its argument succeeded in the First Tier Tribunal, but failed in the Upper Tribunal. Greene King therefore appealed to the Court of Appeal.
Lord Justice Hickinbottom, with whose judgment Arden and Simon LJJ agreed, held that the Commission had a wide discretion as to what it would permit as consistent with the pursuit of the licensing objectives. He thought this unsurprising given the commercial interest and ingenuity of gambling providers, the ever-evolving technological and business models and the infinite potential variation in means and environments for gambling. The statutory scheme therefore set out three statutory objectives, against which the Commission had to measure any novel proposal, this being but one.
The Court rejected the idea that there is a fundamental division of powers between the Commission and authorities, with the Commission obliged to look only at the operator and the licensing authority the premises. Rather, the Commission was entitled to look at the proposed operating model, including the location and operating environment. In other words, there is no clear bright line between the respective functions – in several respects they may overlap. The Gambling Commission was entitled to intervene, since it is an objective of the regime to control gambling activities in a consistent and systematic manner. It was not obliged to leave it all to individual decision-making by licensing authorities.
In general, the Court of Appeal found the Gambling Commission's arguments overwhelming: the Commission was indeed entitled to consider and find the operation to be inconsistent with the licensing objectives and refuse the licence accordingly.
The Court also dealt with an argument that it was not open to the Commission to rely on the experience of its officials as to the risks to the licensing objectives: some more evidence was required. The Court held that the Panel was entitled to draw on its own expertise and experience of the relationship between gambling and alcohol, and that of its officers, in reaching its conclusions.
The appeal was therefore dismissed with costs.
The case is now remitted to the First Tier Tribunal to determine the appeal on its merits.
Philip Kolvin QC of Cornerstone Barristers acted for the Gambling Commission, leading Christopher Knight of 11 KBW, instructed by Nicholas Hawkings of the Gambling Commission.