Playing it straight
Rob Burkitt looks at the issues for licensing authorities surrounding poker played as equal chance gaming in clubs and pubs and explains the work that the Gambling Commission has been doing in this area.
For those not familiar with the intricacies of gambling, knowing what equal chance gaming and bankers games are, what constitutes a dual-use computer and the differences between a private members’ club and a commercial club may all appear rather confusing. Poker remains a popular form of gambling, as witnessed by the rise in the number of pubs offering regular events. It also remains one of the top five most visited subjects on the Gambling Commission’s website.
To assist matters the Gambling Commission has recently been conducting a review of the advice and guidance it has published on the subject, in consultation with LG Regulation and licensing authorities (LAs). The aim of the review is to ensure that the documents are as helpful as possible and provide all the information licensing officers and their legal advisers, as well as the operators of clubs, poker leagues and the like, require when making decisions.
Underpinning the Commission’s approach to poker is the Concordat agreed with LAs, via LG Regulation in March 2010 and the associated protocols. The Concordat states that:
”The Commission recognises that LAs will each have different priorities and that this will have a bearing on their approach to the licensing of premises and to compliance… The Commission’s resources are prioritised on risks that are identified which are high in impact and of regional or national significance. LAs are concerned with risks within their geographical boundaries and which would have a high impact at a local level.”
The Compliance and Enforcement Protocol states that “LAs are best placed to monitor and ensure compliance with the (Gambling) Act at a local level. For example, they are generally in the best position to proceed against individual licensed premises, where the impact is high in that local situation, although the Commission will consider compliance activity against operators who have a large regional or national presence and where the failing is more widespread.”
Licensed operators (normally casinos and their trade associations) have voiced concerns that poker taking place in individual licensed premises is either illegal or incorrectly licensed or in breach of stakes and prize limits. They are advised, in the first instance, to contact the relevant LA to make them aware of the matter.
Aside from remote gaming such as via a website, poker can occur in four situations:
- In casinos and under the auspices of a temporary use notice by casino operators licensed by the Commission
- In alcohol licensed premises, for example a pub poker night
- In members’ clubs, where unlimited stakes and prizes poker may be played where a Club Gaming Permit (CGP) is held
- Poker played illegally.
The approach to poker under the Gambling Act 2005 (the Act) is no different to other gambling activities. In general terms, so long as the appropriate restrictions and safeguards are in place and the provision of poker is consistent with the licensing objectives, it should be permitted. At one end of the scale, therefore, casinos are the only premises where games of chance can be played which are not equal chance gaming - that is, the chances are not equally favourable to all participants. The only minor exceptions are chemin-de-fer and pontoon that can be played with the benefit of a Club Gaming Permit (CGP). In a licensed casino people can play against the house, which has an edge and stakes are not limited by the law. Conversely, in an alcohol licensed premises, with its much more permissive entry criteria and with no gambling specific permit or operating licence required, the stakes and prizes limits are tightly defined.
The Commission has recently produced a further short guide to poker in clubs to complement the existing guide which can be found here. This has been well received by the pub trade and can assist licensing officers in reminding landlords of the requirements. Last year the Commission, working with a Safety Partnership and the local Police Force issued the first cautions concerning unlawful pub poker. However the main focus of our work, as well as the advice and guidance, relates to the potential misuse of CGPs.
As the Commission’s quick guide on the question of whether a club is a members’ club or a commercial club highlights, when considering whether to issue a CGP or whether an existing club is misusing the permission, there are a few headline questions to ask:
- Firstly, is it a members’ club, such as a club with political affiliations, or a miners’ welfare institute, or is it a commercial club? If it is the latter, it is not entitled to a CGP. Examples of the latter would include snooker clubs. An analysis of the club’s constitution, financial arrangements and membership records are some of the key indicators of the club’s status.
- Secondly, what constitutes the main activity of the club? If its main activity is gambling (other than bridge or whist) – for example playing poker, it is not entitled to a CGP. Although this may be difficult to establish if the club has not yet opened, it may be that the club promotes itself via a website which can reveal more about the business intentions. An analysis of the business plan, constitution and membership rules will be essential.
The Commission remains committed to supporting LAs in carrying out their duties within the co-regulatory framework that the Act established. That includes not only the published advice and guidance but also the establishment of principle and precedent. Recently, following discussions with a LA, the Commission made an objection to a CGP application. The LA rejected the application on the basis that they were not satisfied it was a genuine members’ club under s. 266 of the Act.
It is worthwhile noting that other agencies may also have an interest in such matters and be willing to offer assistance. For example if a club is operating on a commercial basis it would be liable to pay gaming duty – which might be of interest to HMRC. The police might also be keen to support licensing officers, particularly as a constable also has specific powers to enter premises under the Act.
An updated edition of the Commission’s advice to licensing authorities on club gaming permits and club machine permits will be published shortly. The new advice will build on the experience gained under the Gambling Act 2005 in the past three years and include examples of good practice undertaken by local authorities.
Rob Burkitt is policy development manager at the Gambling Commission.
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