Primary gambling activity – What does it mean?
In a recent and important case (Luxury Leisure Ltd. v The Gambling Commission), the First-Tier Tribunal judge, NJ Warren, gave a ruling on the meaning of 'primary gambling activity'.
On 12 June 2013 Luxury Leisure attended a hearing of the Gambling Commission’s regulatory panel. The purpose of the hearing was a review of the company’s non-remote operating licence that provides facilities for, amongst other things, betting other than pool betting.
On 1 July 2013 the Commission notified Luxury Leisure that the panel had found them in breach of condition 16 and decided to issue a written warning.
Luxury Leisure appealed the Commission’s decision to the First-Tier Tribunal.
In short, the pertinent issue was the meaning of condition 16 (“primary gambling activity”) and more specifically the condition “Gaming Machines may be made available for use in licensed betting premises only at times when there are also sufficient facilities for betting available.”
The Gambling Commission submitted, in relation to primary gambling activity, “…that the test is whether there are sufficient facilities for betting available such as to indicate that betting is the primary gambling activity on the premises.”
The Tribunal disagreed with the Gambling Commission stating that, “The first and simplest reason … is that the construction inserts into the condition, without justification, words which are simply not there” essentially saying the condition means no more than what the plain words of it say.
Although this case relates to Gambling Commission operating licences, this decision is nonetheless relevant to local licensing authorities.
Readers may recall the case of London Borough of Newham-v-Thames Magistrates' Court.
In this case, LB of Newham appealed the decision of Goldspring DJ, sitting in the Thames Magistrates’ Court, to grant a premises licence to Paddy Power.
LB of Newham appealed the decision on the basis that the DJ observed that licensing authorities were not permitted to take “the issue of primary gambling activity” into account when determining applications for new premises licences.
Unfortunately, the LB of Newham's appeal was decided on other grounds and did not turn on this point and as Gerald Gouriet QC quite rightly points out, “Until there is a definitive test case on the meaning of “primary gambling activity” licensing authorities and magistrates’ courts will need to decide these two matters for themselves.”
Local licensing’s interaction with “primary gambling activity” remains a relevant issue for licensing authorities and the Tribunal’s judgement may be of some assistance to licensing authorities moving forward.