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Schedule 12: Private gaming and betting
Part 1: Gaming
634. Part 1 of the Schedule defines what is private gaming for the purposes of the Bill, and identifies two sub-sets of private gaming: domestic gaming and residential gaming.
635. Gaming is private gaming when:
636. 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
637. There are two types of private betting: domestic betting and workplace betting. The Bill authorises both, in addition to the non-business betting allowances allowed under Part 14.
Clauses 280 to 284: Non-commercial gaming
638. These clauses 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. These clauses 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.
639. The gaming permitted by these clauses is prize gaming (as defined in Part 13) and equal chance gaming which complies with a number of conditions:
640. The effect of these conditions is that there are no limits on the stakes, fees or charges for prize gaming at a non-commercial event, but there could be such limits set by the Secretary of State for equal-chance gaming. 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.
641. The maximum penalty, upon conviction, for the offence is a term of imprisonment not exceeding 51 weeks for England and Wales, and/or a level 5 fine (which is currently £5,000).
PART 15: INSPECTION
642. Part 15 deals with the powers of entry and inspection of premises in relation to gambling. It sets out the different kinds of inspection and the persons who may carry them out, the powers available to these persons both in relation to the circumstances of entry, and activity once on the premises, and the offences applying to persons who do not comply 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.
Clause 285: Enforcement officers
643. 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.
Clause 286: Authorised persons
644. This clause makes provision for persons to be "authorised persons" for the purposes of the Bill. Authorised persons are given various powers and functions under the Bill 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.
645. 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.
Clause 287: Suspected offence
646. Under this clause a constable or enforcement officer may enter premises if it is reasonably suspected that an offence under this Bill 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 to issue a warrant to enter the premises. A warrant can only be issued where the justice of the peace is satisfied there are reasonable grounds for suspecting that an offence under the Bill has been committed and that evidence of the offence may be found on the premises. The justice of the peace must also be satisfied that one of the following conditions listed in subsection (3) is met:
647. If a warrant is to be granted for reasons in subsection (3)(a) or (b) above, the justice of the peace 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.
648. Subsection (5) enables a constable or enforcement officer to take one or more people with them when entering premises on reliance of a warrant. Subsection (6) provides that a warrant under subsection (2) will have effect for 28 days from the date of issue.
Clause 288: Inspection of gambling
649. 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 provided or have been provided on the premises. This does not apply if the suspected gambling is private or non-commercial gaming or betting.
650. This power to enter will apply for the following purposes: to establish whether the facilities for gambling are/were or are about to be provided; to ascertain whether there is an appropriate licence in force; and to determine whether the terms and conditions of the licence are/ have been/ will be complied with.
Clause 289: Operating licence holders
651. 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 be being carried out, but which are being used in connection with licensed activities, such as the head office of a business providing facilities for casino gaming. The constable or enforcement officer will determine whether the terms and conditions of the licence are being met.
Clause 290: Family entertainment centres
652. Where an application for a family entertainment centre gaming machine permit has been made, an enforcement officer or an authorised local authority officer may enter the premises for a purpose connected with the consideration of the application under Schedule 8 to the Bill. Once the permit is in effect, a constable, enforcement officer or authorised local authority officer may enter the premises to determine whether the gaming machines and the arrangements for their use comply with the requirements of the Bill and any regulations made under it. Although constables, enforcement officers and authorised local authority officers have powers of entry under this clause, 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 licensing authority which is responsible for issuing permits for these premises,
Clause 291: Premises licensed for alcohol
653. Where an on-premises alcohol licence application has been made to a licensing authority or where such a licence is held, the licence holder may also apply for the addition to the licence of a condition authorising the use of a specified number of category C or D machines or a mixture of both. Where such an application has been made, an enforcement officer or authorised local authority officer may enter premises for a purpose connected with the consideration of the application.
654. Where an on-premises alcohol licence is in effect, a constable, enforcement officer or authorised local authority officer may enter the premises 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 to ascertain the number and category of gaming machines being made available for use on the premises.
Clause 292: Clubs
655. This clause refers to premises that are reasonably believed to be used by a members' club, a commercial club or a miners' welfare institute. An authorised local authority officer can enter premises where an application for a club gaming or club machine permit has been made for a purpose connected with the application. Once the permit is in effect, a constable or enforcement officer may enter premises to determine whether gaming is or is about to take place, and whether any gaming that is or is about to take place is done so in accordance with authorisation under Part 12 for exempt gaming, a club gaming permit or a club machine permit.
Clause 293: Licensed Premises
656. This clause gives the right of entry to a constable, gambling inspector 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.
Clause 294: Lotteries: registered societies
657. 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 licensing authority is responsible for the registration of societies under the provisions for registered society lotteries.
Clause 295: Temporary use notice
658. This clause allows a constable, enforcement officer or authorised person to enter premises in which a temporary use notice has effect to determine that only the activity permitted by the temporary use notice is being carried out in accordance with the terms of the notice. The right of entry will also apply where the 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.
Clause 296: Authorisations: production on demand
659. In certain circumstances a constable or enforcement officer will have the right, under this clause, to demand copies of a written authorisation granted by a licence holder allowing another person to carry out an activity under the licence. Under this clause, a copy of the authorisation can be demanded from the licence holder within a specified period, and from the person authorised, either within a specified period, or immediately. Failure to comply, without reasonable excuse, will be an offence. The maximum penalty for the offence is a fine not exceeding level 2 on the standard scale (which is currently £500).
660. The types of authorisation which can be demanded under this clause are:
Clause 297: Powers
661. This clause sets out the powers a constable, enforcement officer or authorised person will have when exercising a power under this Part of the Bill to enter premises. Those entering the premises may inspect any part and any machine or other thing on the premises.
662. 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. Under this clause, those entering 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 Bill 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.
663. 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 relating to records.
664. Further, a constable, enforcement officer or authorised person when exercising powers under this Part, are 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).
665. 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 Part 15 of the Bill.
Clause 298: Dwellings
666. A person exercising a power of entry under Part 15 of the Bill may only enter a dwelling where authorised to do so by judicial warrant. A justice of the peace 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 Part 15. The justice of the peace must also be satisfied that one of the following conditions listed in subsection (3) is met:
667. If a warrant is to be granted for reasons in subsection (3)(a) or (b) above, the justice of the peace 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.
668. Subsection (5) provides that a warrant issued under this clause is to have effect for 28 days from the date of issue.
Clause 299: Records
669. A person entering under Part 15 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 (f) of clause 297(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:
Clause 300: Timing
670. 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.
Clause 301: Evidence of authorisation
671. An enforcement officer or authorised person wishing to exercise a power under this part of the Act 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.
Clause 302: Information
672. This clause requires the Secretary of State to determine, by way of secondary legislation, how and when an enforcement officer, constable or authorised person should provide information about any power and its exercise. This may mean that as soon as reasonably practicable after obtaining entry to a premises, an enforcement officer, constable or authorised person would give a written statement detailing the procedure in relation to an inspection and an individual's rights in such circumstances. The detail that will be contained within the regulations must be complied with.
Clause 303: Use of force
673. A constable has the authority to use force to enter premises when exercising powers under this part of the Act. An enforcement officer has the authority to use force to enter premises if he suspects that an offence is being or is about to be committed. An authorised person or enforcement officer has the authority to use force to enter premises if he suspects that gambling (other than private or non-commercial gambling) is taking place.
Clause 304: Securing premises after entry
674. A constable, enforcement officer or authorised person who enters premises under this Part is expected to take reasonable steps to ensure that premises remain as secure as they were when they entered.
Clause 305: Obstruction
675. This clause 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 (which is currently £1,000).
PART 16: ADVERTISING
676. Part 16 makes provision relating to the advertising and promotion of gambling.
Clause 306: Meaning of "advertising"
677. This clause sets out what it means to advertise gambling for the purposes of the Bill. The definition is very broad and covers anything which is done to encourage persons 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 also includes entering into arrangements such as sponsorship or brand-sharing agreements.
Clause 307: Regulations
678. This clause gives the Secretary of State power to make regulations controlling the form, content, timing and location of advertising of 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 Bill concerning the protection of children and vulnerable persons. Regulations under this clause will apply to advertising by both "remote" means (such as email) and "non-remote" means (such as a poster on a hoarding). Specific provision about this is made in subsequent clauses in this Part.
Clause 308: Broadcasting
679. There are restrictions on the extent to which regulations controlling the form, content, timing and location of advertising of gambling, under this Part, may make provision about broadcast advertising. In particular, subsection (1) of this clause prohibits the regulations 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.
680. 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.
681. 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.
Clause 309: Unlawful gambling
682. This clause makes it an offence to advertise unlawful gambling. For these purposes, advertised gambling is unlawful if it requires a licence, notice, permit or registration under this Bill ("a licence etc."), in order for the gambling to take place without an offence under the Bill being committed, and arrangements for the licence etc have not been made at the time of advertising. 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 clause. The offence covers advertising of unlawful gambling whether it takes place by remote or non-remote means, and subsequent clauses in this Part make specific provision about this.
683. The offence does not apply to lotteries. Part 11 of the Bill contains separate provisions relating to the advertising of unlawful lotteries.
684. Persons who commit the offence by doing anything to encourage persons to gamble, or bringing facilities for gambling or information about them to the attention of persons with a view to increasing their use, will have a defence if they can show that they reasonably believed the gambling to be lawful. Persons 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.
685. There is also an exemption from this offence for persons 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.
|© Parliamentary copyright 2004||Prepared: 25 November 2004|