Territorial limits – vessels and aircraft
Schedule 15: Private gaming and betting
Part 1: Gaming
754.Part 1 of the Schedule defines what private gaming constitutes for the purposes of the Act, and identifies two sub-sets of private gaming: domestic gaming and residential gaming.
755.Gaming is private gaming when:
it is equal chance gaming;
no charge is made for participation; and
the gaming is conducted entirely in private (i.e. in a place to which the public do not have access).
756.However, where private gaming meets the conditions for domestic or residential gaming, then there is no need for this to be equal chance gaming, and therefore bankers’ games and games of unequal chance may be played in these situations.
Part 2: Betting
757.There are two types of private betting: domestic betting and workplace betting.
Sections 297 to 301: Non-commercial gaming
758.These sections authorise certain types of gaming to be provided at non-commercial events. A non-commercial event is an event where the money raised from the event is not used for private gain e.g. it is for used for charitable or other generally beneficial purposes. Section 19, by virtue of section 353(1), provides a definition of private gain for these purposes.
759.These sections require that both money raised from the non-commercial event, and the profits made from the gaming itself, are not used for private gain. This means that if someone other than the organiser of the event provides the facilities for gaming, they too must ensure that the profits go to good causes.
760.The gaming permitted by these sections is prize gaming (as defined in section 288) and equal chance gaming which complies with a number of conditions:
All players must be told what purpose the money raised from the gaming is going to be used for (this must be something other than private gain), and the profits must be applied to that purpose;
The non-commercial event cannot take place on premises with a premises licence (under Part 8) or a temporary use notice (under Part 9). There is nothing to stop such premises running charitable or other gambling events to raise money for good causes, but they should do so using the gambling permissions granted to them by their premises licence or use notice. They cannot rely upon any of the allowances granted in Part 14. The one exception to this is that a non-commercial event can take place at a track licensed under Part 8, and rely upon the allowances in Part 14, provided no licensed activities are taking place at the time. This permits the use of tracks for non-commercial gambling on when races are not taking place.
The gaming (whether prize or equal chance) cannot be remote gaming. These permissions are only intended to be used at events, on premises, and for gaming in person.
If the gaming is equal chance gaming, then the gaming must comply with any regulations made by the Secretary of State setting limits on:
The stakes, fees or charges for the gaming; and
The amount or value of any prize available.
There are no limits on the fees, charges or value of prizes for prize gaming at a non-commercial event.
761.In all cases the money raised from the gaming must be used for the fund-raising purpose specified at the event, and if someone uses any profits from the gaming for something else, then they commit an offence under section 301. The maximum penalty, upon conviction for an offence, is a term of imprisonment not exceeding 51 weeks for England and Wales (six months in Scotland), and/or a level 5 fine.
Section 302: Non-commercial betting
762.This section provides a definition for non-commercial betting. This is betting where neither party is acting in the course of business.
Part 15: Inspection
763.Part 15 deals with the powers of entry to and inspection of premises. It sets out the different kinds of inspection and the people who may carry them out, the powers available to such people. both in relation to the circumstances of entry, and activity once on the premises, and the offences for non-compliance with the provisions of this Part. The provisions contain safeguards to ensure that any invasion of privacy is minimised and is proportionate to the purpose for which entry is made. For example, it will not be possible to enter a dwelling under this Part for any reason without a judicial warrant.
Section 303: Enforcement officers
764.The Commission will have power to appoint enforcement officers whose powers are set out in this Part. Enforcement officers may be, but need not be, employees of the Commission.
Section 304: Authorised persons
765.This section makes provision for persons to be “authorised persons” for the purposes of the Act. Authorised persons are given various powers and functions under the Act in relation to inspection of premises in particular when someone is applying for a premises licence. Designated officers of licensing authorities and officers of other authorities who are authorised to exercise certain statutory functions in a particular area are “authorised persons” in relation to premises wholly or partly situated within that area. Subsection (4) provides for certain people to be “authorised persons” in relation to any premises wherever situated.
766.An “authorised local authority officer” is a person designated as such by a licensing authority for a purpose relating to premises within the area of the licensing authority.
Section 305: Compliance
767.This section confers express powers on constables, authorised persons and enforcement officers to undertake activities to assess whether a provision of the Act is being complied with or whether an offence is being committed. This provision is connected to section 64. That section provides for the actions of a constable, enforcement officer or authorised person (or those of a child or young person acting at his request) not to be unlawful under Part 4 if done in performance of his functions under the Act.
Section 306: Suspected offence
768.Under this section a constable or enforcement officer may enter premises if it is reasonably suspected that an offence under this Act has been, is being or is about to be committed on the premises. Where it is suspected that the offence is being or is about to be committed entry can be made without a warrant (unless the premises is a dwelling). In cases regarding the past commission of an offence, a constable or enforcement officer may only enter the premises under the authority of a judicial warrant. An application must be made to a justice of the peace or the sheriff in Scotland to issue a warrant to enter the premises. A warrant can only be issued where the justice of the peace or sheriff is satisfied there are reasonable grounds for suspecting that an offence has been committed and that evidence of the offence may be found on the premises. The justice of the peace or sheriff must also be satisfied that one of the following conditions listed in subsection (3) is met:
Admission to the premises has previously been refused;
Admission is likely to be refused without a warrant;
A search may be frustrated or endangered if immediate entry is not secured; and
There is likely to be no-one present to grant admission to the premises.
769.If a warrant is to be granted for reasons in subsection (3)(a) or (b), the justice of the peace or sheriff must be satisfied that notice of the intention to apply for a warrant has been given to the appropriate person (i.e. the occupier of the premises or the person with responsibility for their management). Where no notice has been given, he must be satisfied that the giving of notice would seriously prejudice the purpose of the search.
770.Subsection (5) provides that a warrant under subsection (2) will have effect for 28 days from the date of issue.
Section 307: Inspection of gambling
771.A constable, enforcement officer or authorised person has the power to enter premises if it is reasonably suspected that facilities for gambling are being, are about to be or have been provided on the premises. This does not apply if the suspected gambling is private or non-commercial gaming or betting.
772.This power to enter will apply for the following purposes: to establish whether facilities for gambling are, were or are about to be provided; to ascertain whether there is an appropriate licence in force; or to determine whether the terms and conditions of the licence are, have been or will be complied with.
Section 308: Operating licence holders
773.A constable or enforcement officer has the power to enter premises where it is reasonably believed to be in use by the holder of an operating licence partly or entirely for purposes connected with the licensed activities. This provision is intended to provide a power of entry to premises where the gambling itself may not necessarily take place, but which are being used in connection with licensed activities, such as the head office of a business running a casino. A constable or enforcement officer may only exercise powers of entry under this section to determine whether the terms and conditions of the operating licence are being met.
Section 309: Family entertainment centres
774.Where an application for a family entertainment centre gaming machine permit has been made, a constable, enforcement officer or authorised local authority officer may enter the premises for a purpose connected with the consideration of the application. Once the permit is in effect, the same may enter the premises to determine whether the gaming machines and the arrangements for their use comply with the requirements of the Act and any regulations made under it. Although constables, enforcement officers and authorised local authority officers have powers of entry under this section, it is anticipated that local authority officers will be primarily involved in the continuing inspection and enforcement of these types of premises. This is because it is the local authority which is responsible for issuing permits for these premises.
Section 310: Premises licensed for alcohol
775.Part 12 and Schedule 13 make provision for Category C or D gaming machines to be made available on certain premises which are licensed to supply alcohol for consumption on the premises. This includes making gaming machines available under a licensed premises gaming machine permit. This section enables an enforcement officer or authorised local authority officer to enter premises in respect of which an application for such a permit has been made for a purpose connected with the consideration of the application.
776.Subsection (2) specifies other circumstances in which a constable, enforcement officer or authorised local authority officer may enter premises which are subject to a licence to supply alcohol for consumption on the premises. Entry may be made to determine whether the gaming taking place satisfies the conditions for exempt gaming under Part 12; whether the terms and conditions of any relevant operating licence are being complied with where bingo is played on the premises; or whether section 281 applies (which is concerned with high turnover bingo). Entry may also be made to ascertain the number and category of gaming machines being made available for use on the premises.
Section 311: Prize gaming permit
777.This section allows a constable, enforcement officer or authorised local authority officer to enter premises in respect of which an application for a prize gaming permit has been made. Once such a permit has effect, the same persons are given the power to enter the premises to determine whether the prize gaming complies with the requirements of the Act or regulations made under it.
Section 312: Clubs
778.This section allows authorised local authority officers to enter premises, where an application for a club gaming or club machine permit has been made, for a purpose connected with the application.
779.The section also specifies the purposes for which a constable or enforcement officer may enter premises which are reasonably believed to be used by a members’ club, a commercial club or a miners’ welfare institute. These are to determine whether gaming is taking or is about to take place, or whether any gaming that is or is about to take place is in accordance with the provisions for exempt gaming under Part 12, a club gaming permit or a club machine permit.
Section 313: Licensed premises
780.This section gives the right of entry to a constable, enforcement officer or authorised person, to premises in respect of which an application for a premises licence has been made. This is to assess the likely impact of a licence being granted, in light of the licensing objectives. Once a licence is in force, there is also a power to enter the premises for a purpose connected with a review of the licence under Part 8.
Section 314: Lotteries: registered societies
781.An enforcement officer or an authorised local authority officer may enter premises owned or used by a society registered with a local authority for the purpose of making inquiries about a lottery being promoted on behalf of the society. It is likely that authorised local authority officers will primarily exercise this power to enter. This is because the local authority is responsible for the registration of societies under the provisions for registered society lotteries.
Section 315: Temporary use notice
782.This section allows a constable, enforcement officer or authorised person to enter premises for which a temporary use notice has effect to determine whether the activities being carried on are in accordance with the terms of the notice. The right of entry will also apply where a notice has been given, but before it has effect. This will enable an assessment to be made of the likely effects of the premises being used for this purpose, in the light of the licensing objectives.
Section 316: Authorisations: production on demand
783.This section allows a constable or enforcement officer to require an operating licence holder who has given a written authorisation, or the person to whom the authorisation has been given, to produce a copy of the authorisation. Failure to comply, without reasonable excuse, is an offence. The maximum penalty for the offence is a fine not exceeding level 2 on the standard scale.
784.The types of authorisation which can be demanded under this section are:
In relation to a pool betting operating licence, where the licence holder has authorised a person to accept bets on his behalf on a horserace course or dog track;
In relation to a pool betting operating licence where the licence authorises the provision of facilities for football pools, where the licence holder has authorised a person to receive payments or entries on his behalf;
In relation to a pool betting operating licence where the licence authorises horserace pool betting, where the licence holder has authorised a person to provide facilities for horserace pool betting; and
In relation to a casino premises licence, where the licence holder has authorised a person or persons to use that premises for providing betting, bingo or both.
Section 317: Powers
785.This section sets out the powers which a constable, enforcement officer or authorised person may exercise when entering premises under this Part.
786.Those exercising powers of entry may inspect any part of the premises and any machine or other thing on them. There is also power to question any person on the premises, to access any written or electronic record on the premises, and to request copies. Those entering will also have the right to seize and retain material, but only where the person entering believes that it contains or constitutes evidence of an offence under the Act or a breach of licence conditions. Through regulations the Secretary of State will have the power to set rules concerning the treatment of copies of written or electronic records supplied, and items removed as evidence of an offence (past or present) or breach of licence condition. Regulations may also include provision regarding the retention, use, return or destruction of items supplied or removed and the conferring of a right of appeal.
787.Restrictions are imposed on the extent to which a person entering premises can have access to and seize records without a warrant. It is only where a record (whether written or electronic) relates entirely to the matters to which the power of entry relates that it can be accessed or seized without a warrant. This is dealt with in further detail below in the note on section 319.
788.A constable, enforcement officer or authorised person when exercising powers under this Part is not entitled to take any action in relation to anything of a kind specified in section 9(2) of the Police and Criminal Evidence Act 1984 (for example, legally privileged material). This restriction only applies in England or Wales.
789.A constable, enforcement officer or authorised person must have regard to any relevant provision of a code of practice under the Police and Criminal Evidence Act 1984 in exercising any powers under this Part. This requirement does not apply in Scotland.
Section 318: Dwellings
790.A person exercising a power of entry under this Part may only enter a dwelling where authorised to do so by judicial warrant. A justice of the peace or the sheriff in Scotland may only issue a warrant if he is satisfied that, but for the requirement for a warrant, the person would be able to enter the premises in reliance on a provision of this Part. The justice of the peace or sheriff must also be satisfied that one of the following conditions listed in subsection (3) is met:
Admission to the premises has previously been refused;
Admission is likely to be refused without a warrant;
A search may be frustrated or endangered if immediate entry is not secured; and
There is likely to be no-one present to grant admission to the premises.
791.If a warrant is to be granted for reasons in subsection (3)(a) or (b), the justice of the peace or sheriff must be satisfied that notice of the intention to apply for a warrant has been given to the appropriate person (i.e. the occupier of the premises or the person with responsibility for their management). Where no notice has been given, he must be satisfied that the giving of notice would seriously prejudice the purpose of the search.
792.Subsection (5) provides that a warrant issued under this section is to have effect for 28 days from the date of issue.
Section 319: Records
793.A person entering under this Part may only inspect or seize records (whether written or electronic) without a warrant where the records relate entirely to the matters to which the power of entry relates. Where records also contain information which is not relevant to those matters (i.e. where they are “mixed” records), then they may only be inspected or seized under the powers in paragraphs (c) to (e) of section 317(1) under the authority of a judicial warrant. For example, “mixed” records may contain information relating to personnel matters or may be commercially sensitive material irrelevant to the matters for which the powers of entry have been exercised. A justice of the peace may only issue such a warrant if he is satisfied that it is necessary to allow inspection of mixed records. The justice of the peace must also be satisfied that one of the following conditions is met:
Notice has been given to a person in control of the records of the intention to apply for a warrant, or
The purpose of exercising the power may be frustrated or seriously prejudiced by the giving of such a notice.
Section 320: Timing
794.A power under this Part can only be exercised at a reasonable time. Reasonable time may depend on the circumstances. If the reason for the entry requires it to be made at a time that would generally be perceived as an unreasonable time, then that time might nevertheless be reasonable in the circumstances of a particular case. For example, in a case where the person making the entry suspects that an offence is or is about to be committed and there is a strong likelihood that any evidence of the offence will be lost if entry is not made during night time hours.
Section 321: Evidence of authorisation
795.An enforcement officer or authorised person wishing to exercise a power under this Part is required to produce evidence of identity and authority to a person (if there is one) who appears to be occupying the premises or to have responsibility for their management.
Section 322: Information
796.This section requires the Secretary of State to make regulations about the information to be provided by those entering premises in reliance on a power under this Part. The regulations are to make provision about the nature of the information to be provided. They are also to prescribe the form and manner in which the information is to be provided, the person to whom it is to be provided and the timing of its provision. Subsection (3) imposes a duty on a constable, enforcement officer or authorised person exercising a power under this Part to comply with any relevant provision of regulations made under this section.
Section 323: Use of force
797.A constable has the authority to use reasonable force to enter premises when exercising powers under this Part. An enforcement officer has the authority to use reasonable force to enter premises where the entry is because he suspects that an offence under the Act has been, is being or is about to be committed on the premises. An authorised person or enforcement officer has the authority to use reasonable force to enter premises if he suspects that gambling (other than private or non-commercial gaming or betting) is taking place.
Section 324: Person accompanying inspector, &c.
798.This section allows a constable, enforcement officer or authorised person to be accompanied by others when exercising a power to enter premises under this Part.
Section 325: Securing premises after entry
799.A constable, enforcement officer or authorised person who enters premises under this Part is required to take reasonable steps to ensure that premises remain as secure as they were when they entered.
Section 326: Obstruction
800.This section makes it an offence to obstruct or fail to cooperate with a constable, enforcement officer or authorised person exercising a power under this Part. For example, it will be an offence to block the doorway to premises where an enforcement officer has requested entry. The maximum penalty for the offence is a fine not exceeding level 3 on the standard scale.
Part 16: Advertising
801.Part 16 makes provision relating to the advertising and promotion of gambling.
Section 327: Meaning of “advertising”
802.This section sets out what it means to advertise gambling for the purposes of the Act. The definition is very broad and covers anything which is done to encourage people to take advantage of facilities for gambling (subsection (1)(a)). It also covers bringing information about gambling facilities to people’s attention with a view to increasing the use of those facilities (subsection (1)(b)). As well as covering the activities of those who act with the specific intention of encouraging the use of facilities for gambling as described in subsection (1)(a) and (b), the definition also provides for the advertising of gambling to include those who participate in or facilitate such activities. Advertising includes entering into arrangements such as sponsorship or brand-sharing agreements.
Section 328: Regulations
803.This section gives the Secretary of State power to make regulations controlling the form, content, timing and location of advertisements for gambling, including requirements for specified words to be included in advertisements. A specific duty is imposed on the Secretary of State to have regard to the need to protect children and other vulnerable persons from being harmed or exploited by gambling. This reflects the licensing objectives of the Act concerning the protection of children and vulnerable people. Regulations under this section will apply to advertising by both “remote” means (such as email or television) and “non-remote” means (such as a poster on a hoarding or a magazine page). Specific provision about this is made in subsequent sections in this Part.
804.It is an offence under this section to contravene a requirement of the regulations and any person guilty of an offence shall be liable on summary conviction to imprisonment for a term not exceeding 51 weeks (6 months for Scotland), a fine not exceeding level 5 on the standard scale, or both. An offence committed under this section shall be treated as a continuing offence which means that an offence shall be committed on each day during any period that the regulations are contravened.
Section 329: Broadcasting
805.There are restrictions on the extent to which regulations controlling the form, content, timing and location of gambling advertisements, under this Part, may make provision about broadcast advertising. In particular, subsection (1) of this section prohibits the regulations under section 328 from making provision about advertising by means of television or radio services to which section 319 of the Communications Act 2003 (c.21) applies. This is broadly a reference to those broadcast television and radio services which are subject to regulation by the Office of Communications (“OFCOM”) under Part 3 of that Act. Section 319 imposes a duty on OFCOM to set, and from time to time to review and revise, standards for the content of programmes to be included in television and radio services.
806.Subsection (2) requires OFCOM to set, review and revise standards for the advertising of gambling under section 319 of the Communications Act 2003. The standards must reflect the provisions of regulations controlling the form, content, timing and location of advertising of gambling made under this Part. OFCOM must also consult the Commission before setting or revising the standards.
807.Subsection (4) ensures that all broadcast television and radio services of the BBC do not fall within the scope of regulations controlling the form, content, timing and location of advertising of gambling made under this Part. This includes the BBC World Service which is not to any extent a service to which section 319 of the Communications Act 2003 applies.
Section 330: Unlawful gambling
808.This section makes it an offence to advertise unlawful gambling. For these purposes, advertised gambling is unlawful if it requires a licence, notice, permit, registration or exception under this Act (“a licence etc.”), in order for the gambling to take place without an offence under the Act being committed, and arrangements for the licence etc. have not been made at the time of advertising, or the exception does not apply to the arrangements. Take, for example, facilities for casino gaming which require operating, personal and premises licences to be obtained in order that the gaming can be provided without an offence being committed. Unless the necessary licences have been obtained at the time of advertising, any advertising of the gambling will constitute an offence under this section. The offence covers advertising of unlawful gambling whether the advertising takes place by remote or non-remote means, and sections 332 and 333 make specific provision about this.
809.The offence does not apply to lotteries. Part 11 of the Act contains separate provisions relating to the advertising of unlawful lotteries.
810.A person who commits the offence by doing anything to encourage people to gamble, or bringing facilities for gambling or information about them to the attention of others with a view to increasing their use, will have a defence if they can show that they reasonably believed the gambling to be lawful. People who commit the offence by participating in or facilitating such an activity will only commit the offence if they know or ought to have known the gambling to be unlawful.
811.There is also an exemption from this offence for peoples who advertise gambling because they merely deliver, transmit, broadcast or make data available in the course of business, without having any editorial control over the nature or content of the material.
812.A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding 51 weeks for England and Wales (6 months for Scotland), a fine not exceeding level 5 on the standard scale, or both. An offence committed under this section shall be treated as a continuing offence which means that an offence shall be committed on each day during any period that the advertisement is displayed or made accessible.
Section 331: Foreign gambling
813.This section makes it an offence to advertise non-EEA (or “foreign”) gambling. Foreign gambling is gambling which either physically takes place in a non-EEA state (e.g. a casino in Australia), or gambling by remote means which is not regulated by the gambling law of any EEA state (the interpretation section in Part 18 defines “EEA state”). For the purposes of this section, Gibraltar is treated as if it is an EEA state, which will allow gambling operators based in Gibraltar to advertise their services in the United Kingdom. The offence covers advertising of gambling whether the advertising takes place by remote or non-remote means, and sections 332 and 333 make specific provision about this. This section extends to Northern Ireland.
814.The offence does not apply to lotteries. Part 11 of the Act contains separate provisions relating to the advertising of foreign lotteries.
815.It will be open to the Secretary of State, however, to make regulations specifying countries or places which are to be treated as though they were EEA states for the purposes of this section. The effect of this will be to put any advertising of gambling taking place in that country or place outside the scope of the offence.
816.The maximum penalty upon conviction for an offence under this section is a term of imprisonment of 51 weeks in England and Wales (6 months in Scotland and Northern Ireland), together with a fine up to level 5 on the standard scale.
Section 332: Territorial application: non-remote advertising
817.This section clarifies the application of Part 16 where the advertising is by non-remote means, for example a poster on a hoarding.
818.Where the advertising is by non-remote means:
regulations controlling the form, content, timing and location of advertising under this Part; and
the offence of advertising unlawful gambling under this Part;
will only apply where the advertising takes place wholly or partly in Great Britain; and:
the offence of advertising foreign gambling under this Part,
will only apply where the advertising takes place wholly or partly in the United Kingdom.
Section 333: Territorial application: remote advertising
819.This section clarifies the application of these provisions where the advertising is by remote means, for example by email or television broadcast.
820.For remote advertising of gambling to fall within the scope of Part 16 it has to satisfy three tests. In the case of section 331 (the remote advertising of foreign gambling), it is only the first of the three tests which has to be satisfied. Furthermore, in the case of foreign gambling, the references to Great Britain in the first test should be read as references to the United Kingdom, because section 331 extends to Northern Ireland.
821.The first test is broadly that the advertising must be targeted at people in Great Britain. In particular the advertising must involve:
providing information intended to come to the attention of a person in Great Britain;
sending a communication intended to come to the attention of a person in Great Britain;
or making data available with a view to its being accessed by a person in Great Britain or in circumstances where that is likely to happen.
822.The second test applies in the case of advertising that is either broadcast by television or constitutes an information society service within the meaning of Directive 98/34/EC (on electronic commerce). Information society service means “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing … and storage of data, and at the individual request of a recipient of a service”.
823.Where the advertising is broadcast by television the provisions of Part 16 will only apply if the broadcaster is either under the jurisdiction of the United Kingdom for the purposes of Directive 89/552/EEC (Television Without Frontiers) or is not under the jurisdiction of an EEA state for the purposes of that Directive. The purpose of this particular test is to ensure that the provisions do not apply to advertising where the broadcaster is properly regulated by another EEA State.
824.Where the advertising constitutes an information society service, the provisions of Part 16 only apply where the service provider:
is established in the United Kingdom for the purposes of Directive 2000/31/EC,
is established in a non-EEA state for those purposes, or
has been notified that the conditions for derogation in Article 3(2) of that Directive have been satisfied in relation to the service provider.
825.Directive 2000/31/EC is concerned with contributing to the proper functioning of the Internal Market by ensuring the free movement of information society services between Member States. In broad terms the Directive establishes that a provider of information society services is to be regulated by the State in which it is established. Therefore, in general, where advertising constitutes an information society service, the provisions of Part 16 only apply where the provider is either established in the United Kingdom or outside the EEA. Article 3(4) of the Directive enables Member States to derogate from this general rule where the provider of an information society service not established in its country presents a serious and grave risk in respect of public policy matters such as the protection of consumers. The possibility to derogate under Article 3(4) of the Directive is also reflected in the section.
826.The third test is that the gambling itself takes place in Great Britain where it is non-remote gambling; or, where it is remote gambling, that at least one piece of remote gambling equipment is situated in Great Britain.
Part 17: Legality and Enforcement of Gambling Contracts
827.This Part deals with the legality and enforcement of gambling contracts. As a result of the sections in this Part, contracts made for gambling purposes are to be treated similarly to other contracts. In particular, any debts that arise from gambling will be capable of enforcement in the same way as any other personal or business debts. All statutory provisions which prevented such contracts from being enforced are repealed by the Act. However, the Commission is given power to void betting contracts in certain circumstances. These powers (set out in this Part) are intended to promote the licensing objectives (under Part 1) and enable the Commission to take specific action if it is satisfied that a bet was substantially unfair.
Section 334: Repeal of provisions preventing enforcement
828.This section repeals all statutory provisions which provide that gambling contracts are unenforceable. The repeals will not apply retrospectively, so any gambling contract made, or right arising from an agreement made, before this section comes into force will not be enforceable.
Section 335: Enforceability of gambling contracts
829.This section expressly provides that a contract will be capable of being enforced irrespective of the fact that it is a contract relating to gambling. This does not, however, override any other rule of law that prevents enforcement on the grounds of unlawfulness. Therefore gambling contracts may be void on the same basis as any other contract (for example, on the basis of lack of intention, mistake or illegality).
Section 336: Power of Gambling Commission to void bet
830.This section provides the Commission with the power to make an order that a bet accepted by, or through, the holder of a general betting operating licence, a pool betting operating licence, or a betting intermediary operating licence, is to be void.
831.Where the Commission exercises this power, any contract or other arrangement relating to the bet will be void, and any money paid in relation to the bet must be returned to the person who paid it. So, for example, a person who places a stake on a bet that the Commission orders should be made void, must have their stake returned to them. Equally, any winnings must be repaid to the person who accepted the bet. Such repayments will be enforceable as a debt.
832.The Commission may only make an order under this section where it is satisfied that the bet was substantially unfair. In considering whether a bet is substantially unfair, the Commission must, in particular, have regard to any of the factors listed in subsection (4) that apply. These are:
that one or both of the parties to the bet (whether they made or accepted the bet) supplied information in connection with it that was insufficient, false or misleading;
that one or both of the parties to the bet believed, or ought to have believed, that the race or event about which the bet was made was, or would be, conducted in contravention of the industry rules (as defined in section 337(7)) that apply to the event. This might apply where, for example, one party to a bet knew that players in a youth football match were in fact over the legal age for participation, but nonetheless offered a bet on the match;
The fact that one or both of the parties to the bet believed, or ought to have believed, that the offence of cheating (as set out in section 42) had been, or was likely to be, committed in relation to the bet. This could apply where, for example, a person connected to a racehorse owner became aware that the horse had been deliberately injured prior to a race in which it was to run and, on the basis of that knowledge, made a bet on that horse through a betting intermediary;
The fact that one or both parties to the bet have been convicted of the offence of cheating as set out in section 42 of the Act.
833.The effect of this section is that the Commission will not automatically void a bet where one of the factors listed in subsection (4) applies; it will only cancel a bet where it is satisfied that it was substantially unfair. This will allow for the situation where both parties to the bet knew about the cheating, for example, and so no unfairness arises.
834.The power to void a bet will be available to the Commission for a period of six months from the day on which the result of the bet is determined, except where there has been a conviction for cheating, in which case there is no time limit. Provision is made in section 337 for rights of appeal in relation to orders made by the Commission under this section.
Section 337: Supplementary
835.Subsection (1) of this section provides for a right of appeal to the Gambling Appeals Tribunal where the Commission makes an order to void a bet. Either party to the bet, and any other person who was a party to a contract or arrangement relating to the bet, will be able to appeal. This means that, for example, betting intermediaries who may lose money as a result of a bet being void, but who are not a party to the actual bet, are provided with a right of appeal. Further provision is made about the Gambling Appeals Tribunal in Part 7 of the Act.
836.Subsections (2) and (3) give the Commission power to void any part of a betting transaction, and to determine the consequences for any bets connected with a bet or betting transaction that is made void. Such a determination might, for example, require all the successive bets in an “accumulator” bet to be made void.
837.When investigating whether to order that a bet should be made void, the Commission may require any person by or through whom the bet is made or accepted (such as a party to the bet or a betting intermediary), to provide information or documents in relation to the bet. A person who does not comply with this requirement commits an offence, unless they have a reasonable excuse. The penalty for the offence will be a maximum fine of level 2 on the standard scale. In conducting its investigation, the Commission may also take into account any other information that it receives.
Section 338: Interim Moratorium
838.The Commission will have the power to make an order freezing any obligation to pay money in relation to a bet, where it suspects that it may need to make an order that the bet is void under section 336. The effect of this interim moratorium is to protect any payments that would otherwise have been made in relation to a bet, but which might be difficult to recover if the Commission later decides that the bet should be made void. So, whilst the interim moratorium is in place, a betting operator need not pay a customer any winnings; and the customer will not be required to pay any stake or commission.
839.The Commission need not be certain that a voiding order will be made before imposing the interim moratorium.
840.An interim moratorium will last for a period of 14 days, beginning on the day that it is made. It will be possible for the Commission to extend an interim moratorium by a further period of up to 14 days. There is no limit to the number of interim moratoriums that the Commission may impose in relation to any bet, although the time limit of 6 months for making an order to void a bet will continue to apply during any period when an interim moratorium is in place.
841.The Commission may cancel an order for an interim moratorium before it expires; and must cancel one if it ceases to think that it might want to make an order to void the bet.
842.Where the Commission decides to impose an interim moratorium, but then decides not to void the bet, the Commission will not be liable to make any payment (such as interest on the payments that have been frozen) simply because it has taken such action.
Part 18: Miscellaneous and General
843.Part 18 contains a number of miscellaneous provisions. It provides powers for transitional arrangements to be made for implementation of the various new licensing and permit regimes established by the Act. It covers matters such as application of the Act to the Crown, and the prosecution powers of licensing authorities. It sets out a comprehensive interpretation section, and it provides for repeals and consequential amendments and the general extent of the Act.
Section 339: Prize competitions
844.Participating in competitions in which there is a prize is not to be regarded as gambling as long as the activities involved in the competition do not amount to betting, gaming or participating in a lottery as defined in the Act.
Section 340: Foreign Betting
845.This section repeals sections 9 to 9B of the Betting and Gaming Duties Act 1981 (c.63), which imposes prohibitions on certain activities relating to overseas betting, for the protection of the revenue. The provisions of Part 16 will provide a complete regime for the regulation of advertising, and as a result, these sections of the 1981 Act are no longer required.
Section 341: Offence committed by body
846.If a body (such as a company) commits an offence under the Act, persons of authority in the body (known as officers) may be prosecuted if the offence resulted from their consent, connivance or their negligence. The body may be prosecuted also. Officers can include directors, managers, secretaries and members of a body. Where a body is a partnership then each partner is individually responsible for offences arising in these circumstances. Unincorporated bodies and their officers may also be prosecuted in the same way.
847.Subsection (7) allows the Secretary of State to make regulations dealing with the application of this section to bodies formed outside the United Kingdom.
Section 342: False information
848.Any person giving false or misleading information to the Commission or to a licensing authority, without a reasonable excuse, commits an offence. If convicted, the person may be imprisoned for up to 51 weeks in England and Wales, or 6 months in Scotland, and may also be fined an amount up to level 5 on the standard scale. If the Commission or a licensing authority have taken a decision on the basis of false information they may do whatever in their judgement is necessary to alter or remedy the effects of that decision.
Section 343: Value of Prize
849.This section is concerned with determining how the value of a prize is to be calculated. A number of provisions in the Act give powers to the Secretary of State to prescribe the maximum value of a prize that may be won at gambling. This section allows such regulations to include provision for determining what is meant by the value of a prize, where they are non-monetary prizes.
850.Subsection (3) authorises a practice commonly known as “trading-up”. This is where a person who has won two or more separate prizes from a gaming machine can swap the prizes won for another, different, prize. In the exchange, the value of the prize received must not be greater than the total value of the prizes that could have been won by the player from his winning turns on the machine. Thus, if a person wins two small toys from a Category D machine (and the maximum value of each prize is £8 under the Category D classification), then the two small toys can be swapped for one big toy provided the value of the big toy does not exceed £16 (2 x £8 prizes). The swap must also comply with any rules about the nature or type of prize that could have been delivered by the machine.
Section 344: Participation Fees
851.This section provides a definition of “participation fee” for the purposes of the Act. Under various Parts of the Act, powers are taken to prescribe maximum participation fees for gambling (e.g. under Parts 5 and 12), or participation fees are prohibited in relation to certain forms of gambling (e.g. private gaming under Part 14). This section describes the matters which may or may not count as a participation fee. It gives the Secretary of State power to provide that a membership subscription is to be treated as a participation fee, as an exception to the general rule set out in subsection (1).
852.Subsection (4) allows the Secretary of State to deal with the apportionment of participation fees where the fee covers both gambling and non-gambling activities. An example of when this could be used is where a participation fee limit is set for the admission charge to premises where gambling takes place (see subsection (1)(b)), but some of that sum is referable to non-gambling activities. In such circumstances the fee could be apportioned, and only the gambling element of it limited. This power applies to all participation fee powers under the Act.
Section 345: Forfeiture
853.Courts may order the forfeiture of items, like gaming machines, which are involved in the commission of offences under the Act. Items will be surrendered to the police. Persons who have not been convicted may make representations about any items that are the subject of a forfeiture order, where they believe they have an interest in the article, and the court may order that the article be given to that person.
854.It will be an offence to fail to co-operate with a forfeiture order, the maximum penalty upon conviction being a maximum term of imprisonment of 51 weeks in England and Wales, or 6 months in Scotland, and/or a fine up to level 5.
Section 346: Prosecution by licensing authority
855.Local authorities have general powers to prosecute and defend legal proceedings, but this section provides power for them to institute proceedings with respect to specified offences under the Act. The section identifies those matters for which licensing authorities have express power to prosecute. This section does not apply to Scotland.
Section 347: Prosecution: time limit
856.This Section disapplies section 127(1) of the Magistrates’ Courts Act 1980 (c.43). That section limits the time for bringing a prosecution in the Magistrates’ court to six months from the date upon which the offence was alleged to have been committed. Subsection (1) imposes a longer time limit, of 12 months from the date upon which the offence was alleged to have been committed.
Section 348: Excluded premises
857.The Act generally applies to gambling on any premises in Great Britain, including vessels and vehicles. However, this Section provides an exception to this general provision by excluding from the Act premises which are subject to a national security certificate, issued by the Secretary of State or the Attorney General, or premises which are otherwise of a kind specified by the Secretary of State by order.
Section 349: Three-year licensing policy
858.Licensing authorities perform a number of different functions under the Act. They issue premises licences under Part 8, temporary use notices under Part 9, and a range of permits, under Parts 10, 12 and 13 and Schedules 10, 12, 13 and 14. To assist them in this task, and to provide transparency for those wishing to apply to a licensing authority for a permission under the Act, all authorities are required to prepare a licensing policy, covering all their functions.
859.This section sets out the procedures authorities must follow in preparing such a policy. Following widespread consultation, licensing authorities will publish a licensing policy statement describing the principles they intend to apply in exercising their various functions. The policy will have effect for three years, but the authority may review and alter the policy during that period. Regulations may be made by the Secretary of State (or Scottish Ministers in relation to Scotland) about the form of statements, the procedure to be followed in relation to them and their publication. An order of the Secretary of State will fix the first day of the initial three year period.
Section 350: Exchange of information
860.Part 2 of the Act contains provisions which enable the Commission to exchange information with the bodies listed in Schedule 6. This section allows the bodies listed in Part 1 of that Schedule to exchange information amongst themselves for use in the exercise of a function under the Act. It also allows those bodies to provide information obtained in the course of functions under the Act to Her Majesty’s Customs and Excise. The provision of information under this section may be made subject to conditions.
Section 351: Power to amend Schedule 6
861.This section confers power on the Secretary of State by order to amend the lists of bodies in Schedule 6. In particular, it allows entries to be added to or removed from a list, and for entries to be moved from one list to another.
Section 352: Data protection
862.The Act contains various provisions enabling bodies, including the Commission, to provide information to other organisations. This section makes it clear that nothing in the Act is to be taken as authorising a disclosure of information which would contravene the Data Protection Act 1998 (c.29).
Section 353: Interpretation
863.This section provides the general definitions and meanings of expressions for the Act. Particular definitions of substance, in subsection (1), are provided for:
Director;
EEA State;
Football pools;
Premises;
Stake;
Track (and dog tracks and horse-race courses);
Vehicle; and
Vessel.
864.Subsection (2) contains a number of interpretative provisions for references in the Act. Subsection (3) provides a definition of what is meant by “virtual game, race or other event or process”, and subsection (4) covers what is meant by giving notice under the Act.
Section 354: Crown application
865.The Act applies to the Crown, which includes government departments and crown servants. However, the Act has no effect in relation to anything done on premises occupied by the armed forces.
866.Subsection (3) ensures that a reference to “fire and rescue authority” in the Act will be substituted with a reference to “Her Majesty’s Fire Inspectorate” in relation to premises for which Her Majesty’s Fire Inspectorate is the proper fire authority. In particular, in respect of those properties for which they have responsibility, Her Majesty’s Fire Inspectorate will be a responsible authority under Parts 8 and 9 and will be required to be notified of any application for a premises licence in relation to those premises.
Section 355: Regulations, orders and rules
867.This section contains provisions governing the form and procedure for regulations, rules and orders made by the Secretary of State (or the Lord Chancellor) under the Act. Similar provision is made for regulations made by Scottish Ministers.
868.Most regulations made under the Act are to be made by statutory instrument, pursuant to the negative resolution procedure. However, subsection (4) lists particular regulation-making powers which must be made pursuant to the affirmative resolution procedure (where made by the Secretary of State) or be approved by resolution of the Scottish Parliament (where made by the Scottish Ministers). Orders (with the exception of those listed in subsection (7)) are to be made by statutory instrument subject to the affirmative resolution procedure. By virtue of subsection (8) commencement orders under section 358 are not subject to any Parliamentary procedure except as provided in that subsection.
Section 356: Amendments and repeals
869.As a result of the substantive provisions in the Act, there need to be consequential amendments made to provisions in other legislation and repeal of other Acts, in part or in their entirety. This section lists the major enactments repealed by the Act.
870.Schedule 16 contains the minor and consequential amendments arising from provisions of the Act. The minor amendments in Part 1 of Schedule 16 include amendments to the Gaming Act 1968. The amendments relate to the provisions of that Act concerned with gaming and gaming machines in premises licensed to supply alcohol. They also affect premises licensed under that Act, including in particular casinos. The amendments to the 1968 Act will apply until the repeal of that Act by this Act. Schedule 17 lists provisions repealed by the Act, and the extent of their repeal.
Section 357: Money
871.This section makes provision for expenditure and receipt of sums by a Minister of the Crown under the Act.
Section 358: Commencement and Schedule 18
872.This section makes provision for the commencement of the Act. It provides for the preceding provisions of the Act to be brought into force by commencement order made by the Secretary of State. It is the Government’s intention that the Act be brought into effect in stages. This section makes this possible by allowing different parts of the Act to be brought into force at different times and in relation to different classes of activity under the Act.
873.Subsection (2)(e) specifically allows a commencement order to be made for the purposes of establishing the Commission so that it can carry out preparatory work prior to the repeal of the existing licensing regimes. Subsection (2)(f) makes it possible for provisions to be brought into force so that people who wish to provide facilities for gambling may make advance applications for a licence or permit under the Act, and for those advance applications to be considered and determined.
874.Subsections (4) to (6) enable savings, modifications and transitional arrangements to be made in the context of the Horserace Betting and Olympic Lottery Act 2004. This will enable provisions to be made that ensure the new licensing regime under the Act is compatible with that legislation.
875.This section and, in particular, Schedule 18 provide powers to effect transition to the new regulatory regime and also allow effect to be given to what have become known as “grandfather rights”. This means making provision whose effect is to require relevant authorities to grant new permissions to people making applications if they held equivalent permissions under the previous law.
876.Part 1 of Schedule 18 deals with the transitional continuation of old licences and permissions. In particular, paragraph 3 allows particular provision to be made for casinos which are below the minimum licensable size, as defined by regulations pursuant to section 7 of the Act. This will allow such casinos to continue to operate, with controls, but without requiring them to meet the minimum size requirements.
877.Part 2 of this Schedule deals with advance and interim applications, and the need for licences to be converted from old licences to new licences in certain circumstances. The Government intend that these conversion powers will be used primarily in relation to applications for premises licences under Part 8, family entertainment centre gaming machine permits under Schedule 10, lottery registrations under Schedule 11, prize gaming permits under Schedule 14, and in relation to the gaming activities of clubs and pubs under Part 12. There is to be no automatic conversion for operating and personal licences.
Sections 359 & 360: Vessels and Aircraft: Territorial limitation
878.The Act applies to vessels and vehicles. See, for example, sections 211 and 231. Sections 359 and 360 establish the territorial limitation to the Act’s regulation of vessels and aircraft.
Section 361: Extent
879.The Act applies to Scotland, England and Wales, but not generally to Northern Ireland. There are three exceptions to this. The offence of chain gifting in Part 3 and that of advertising foreign gambling in Part 16 apply to Northern Ireland, as does the repeal of sections 9 to 9B of the Betting and Gaming Duties Act 1981 contained in this Part.
