Further Memorandum from the Magistrates
Association (DGB 168)
1. PREFACE
Despite only receiving a few days notice of
the submission date, the Magistrates Association (MA) made its
submission within the timetable called for. Since then the Association
has had an opportunity to consider the four documents in more
detail, and in particular some of the matters in the schedules.
Accordingly the MA feels it necessary to update/amend its original
submission.
2. CURRENT POSITION
The current prosition whereby the Gaming Board
is "policy maker", a Magistrates Betting and Gaming
Committee is "decision taker", and the Crown Court is
the appeal tribunal, is fully compliant with Article 6 of the
1998 Human Rights Act, ("everyone is entitled to a fair and
public hearing by an independent and impartial tribunal").
Both Magistrates Betting and Gaming Committees, and the Crown
Courts, pay due regard to the Gaming Boards policies. However
the Crown Court, a Crown Court Judge sitting with four Betting
and Gaming Magistrates, is not bound by the Gaming Boards policies
and occasionally, when the circumstances of the appeal warrant
it, the Crown Court may come to an alternative finding (see item
4 below "The Ritz Casino Case"). This appeal decision
resulted in the Gaming Board reviewing, and revising, its Policy.
For Betting and Gaming matters, Magistrates'
sit in their Civil Jurisdiction, and as such are not, in contested
applications, confined to reaching a decision in favour of one
party or the other. They can, having listened to the evidence
of the parties, explore options which arise from the submissions
made to them, and which they believe may be acceptable to both
parties. An example, an application for a new casino is opposed
by local residents, concerned about car doors banging in the middle
of the night, when people are leaving the proposed Casino. The
Betting and Gaming Magistrates, with their local knowledge, aware
that there is an all night car park nearby, grant the application
with a condition that all casino members and their guests have
free access to the car park, with the cost borne by the Casino.
When dealing with contested applications for
new betting shops, Betting and Gaming Magistrates will be fully
aware of the character of the area, and the issues arising, from
their other jurisdictions.
3. PROPOSED POSITION
If as proposed, in the draft Gaming Bill, jurisdiction
is transferred to the Gaming Board under its proposed new name
"The Gambling Commission", the new body would be both
policy maker and decision taker. This raises significant issues
under Article 6 of the 1998 Human Rights Act. Ahead of the Act
coming ito operation the Lord Chancellor made it quite clear to
the Magistrates Association, at their AGM, that the reason the
Act was being introduced was because too many domestic cases were
being successfully appealed to the European Court of Human Rights
in Strasbourg. This position was confirmed on the cover of the
manual given to the Lay Magistry "Human Rights and the Courts
Bringing Justice Home", and repeated in the the Lord Chancellor's
foreword. It would be a major set-back to the Governments "bringing
justice home" objective, if as a result of this Bill Betting
& Gaming appeals started to find their way to the Strasbourg
Court.
4. GAMING ISSUES/THE
RITZ HOTEL
CASINO CASE/PARTIAL
DEREGULATION
In wanting the proposed Gambling Commission
to be policy maker, a well as decision taker, the DCPv4S and the
Gambling Board would seem to be not only insensitive to the Human
Rights Act, but to have learned nothing from the Ritz Casino Case.
Against a background of the Gambling Boards
annual "advice" document to the Inner London Magistrates
Betting and Gaming Committees, as per Paragraph 19 of the Gaming
Act 1968, that "it is the view of the Gaming Board for Great
Britain that existing facilities for gaming, other than for bingo,
which are currently available in London are adequate to meet existing
demand", the local Betting and Gaming Committee refused an
application from the Ritz Hotel, approximately 3 years ago, for
a Gaming Licence. The application arose because the Casino Licensee
at the Ritz moved out to other premises, and the Hotel wished
to take it on themselves. As per the Gaming Boards annual demand
advice letter to the local Betting and Gaming Committee, the Committee
refused the application. The Ritz appealed to the Crown Court
(a Crown Court judge sitting with four experienced Betting anf
Gaming Magistrates not involved in the initial application). The
Crown Court allowed the appeal. As a result of this case, the
Gaming Board changed in 2003 its annual "advice" document,
to Betting and Gaming Committees to read as follows as follows,
"the Board has concluded that in future it will object on
grounds of demand only if this raises regulatory concerns",
ie partial deregulation already exists via case law.
5. THE APPEAL
TRIBUNAL
Were the Gaming Board, under its proposed new
name, to be given the role of "policy maker", and via
its licensing committee the role of "decision taker",
the proposed seperate Gambling Appeal Tribunal, with a President
and Members appointed by the Secretary of State, would have neither
the knowledge, experience nor the standing of the current Appeal
Tribunal ie a Crown Court Judge, sitting with experienced Betting
and Gaming Magistrates. The inevitable result would be the appellants
taking their case to the The European Court Of Human Rights in
Strasbourg. This would be a major setback to the Governments 1998
Human Rights Act objective, ie to reduce/stop cases going to Strasbourg,
hence the subtitle they gave the Act, "Bringing Justice Home".
6. BETTING ISSUES
To deal with suitability of applicant issues,
the Police can and do attend Magistrtates' Betting & Gaming
hearings. There has been a demand for Telephone and Internet betting
in over the last few years, including applications for licences
from overseas interests. Where overseas interests are involved,
police resources via Interpol, as well as references, are used
to establish the suitability of the applicant(s). In addition
Committees can and do insist on overseas applicants coming to
to the UK for a sitting, at which they can be questioned by the
Police as well as the Committee. In the case of overseas applicants,
Committees can, and do. insist on at least one of the Directors
being a UK resident, and on a sum of money being deposited, with
release restrictions, in a UK bank.
Applications for new Betting Shops can be fiercely
contested by nearby existing Betting Shops. The determing issue
is demand. Betting and Gaming Magistrates, when deciding on whether
demand exists are guided by the 77 paragraph judicial review in
the case of Hestview v Snaresbrook Crown Court. Despite
this judicial review, such applications can take several days
as the applicants bring punters and market researchers to make
the demand case. The market researchers can be subjected to significant
cross examination by one or more of the representatives of the
objectors. The objectors representatives then present witnesses
(usually retired police officers) who count punter numbers at
different times of the day with a view to making the case that
existing facilities are adequate. The objectors (nearby betting
shops) put forward their market researchers to contradict the
applicants market researchers and these in turn are cross examined
by the applicants representative. While this procedure can be
tedious, and sometimes takes a day or two, the Magistrates Association
fully supports it as part of the Governments' policy of limitation
of betting facilities, because of the misery that betting which
gets out of hand, can cause for individuals and families.
7. SUMMARY
This Bill raises significant issues under Article
6 of the European Convention on Human Rights, risks the return
of appeals to the Strasbourg Court, and centralises to a national
incompatible initial tribunal, and a national incompatible appeal
tribunal, a currently decentralized/local matter dealt with by
experienced trained and fully compatible local tribunals, and
a fully compatible local appeal tribunal.
March 2004
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