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Brief notes on the new Weights & Measures provisions

We already have a wonderfully eclectic mix of imperial and metric measures set down for the provision of alcoholic drinks, and now a few more are being tossed into that mix. From 1 October 2011, Weights and Measures legislation is amended to introduce some new measures, and alter those for fortified wine.

The New Measures
• Draught beer and cider sold for consumption on licensed premises must be sold only in ½ or 1/3 pints, or multiples of those quantities. The new introduction is the 2/3 pint (schooner)that may now be sold.
• Still wine sold by the glass must still be sold in specified quantities of 125ml or 175ml or a multiple of either, but wine in a quantity below 75ml no longer has to be in any specific quantity. You can decide to dispense such tasters in a fixed quantity if you wish, and in those circumstances you should use one of the standard quantities of 20ml, 25ml, 35ml, 50ml or 70ml and notify customers accordingly.
• Fortified wines must now be sold in quantities of 50ml and 70ml. It is understood that this is current trade practice, so you should hopefully have the correct measures readily to hand. Remember : if using thimbles etc, you must be facing the customer when you dispense.

The Mandatory Conditions
The conditions on your Premises Licence have not altered, and still require you have the following measures available for alcohol sold for consumption on the premises :

• Draught beer or cider : ½ pint
• Gin, rum, vodka and whisky : 25ml or 35ml, and
• Still wine in a glass : 125ml

Customer Information
You continue to be obliged to ensure that the customer is made aware of the smaller measures referred to in the Mandatory Conditions. You must also continue to advise customers, by a statement displayed and contained in every wine list and menu, of the measures in which wine and fortified wine is for sale.

Disclaimer The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult me for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained on this website. Transmission of the information contained on this website is not intended to create, and receipt of it by you does not create, a solicitor-client relationship. Nothing in this article shall constitute a binding offer to perform any legal service in any legal jurisdiction. The information and materials are provided on the date shown, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.
© Julia Palmer JCP Law
Potterne Farm Cottage, Potterne Way, Wimborne, BH21 6RS
Telephone : 01202 813658
Mobile : 07866 265152
Fax : 01202 820478
email : Julia.Palmer@JCPlaw.co.uk 4.10.11

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Brief Notes on the Health Act 2009 provisions in force from 1.1.10

You will no doubt have heard of the Government’s plans to ban cigarette advertising, display and vending machine sales, and of the unsuccessful challenge to that proposal launched by a subsidiary of Imperial Tobacco. The main restrictions will come into force in two years’ time, but, in England, some are biting with effect from 1 October 2011. Other parts of the UK are to follow.

Vending Machines
The main provision likely to affect my clients is the ban on the use of vending machines on any premises (which is widely defined) to sell tobacco products.

With effect from Saturday, 1 October, it will be an offence, potentially incurring a fine of up to £2,500 at current levels, to allow sales from a vending machine, or for that machine to advertise tobacco products, even if the machine is not dispensing them. Both Premises Licence holder and management are at risk of being prosecuted.

If you have not already done so, the wise move would be to arrange for the suppliers to take the cigarette vending machines away entirely to prevent inadvertent breach.

Advertising and Display
1 October 2011 is also the commencement date for Regulations controlling the display of tobacco products and prices in large shops (over 280 sq m), unless a bulk tobacconist. Advertisement breaches carry a current maximum fine of £5,000.

Other public premises (with the exception of specialist tobacconists) will be affected from 1 October 2013, so whilst there is a short period of grace, long term business plans should take account of these controls and their likely effect.

Disclaimer The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult me for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained on this website. Transmission of the information contained on this website is not intended to create, and receipt of it by you does not create, a solicitor-client relationship. Nothing in this article shall constitute a binding offer to perform any legal service in any legal jurisdiction. The information and materials are provided on the date shown, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.
© Julia Palmer JCP Law
Potterne Farm Cottage, Potterne Way, Wimborne, BH21 6RS
Telephone : 01202 813658
Mobile : 07866 265152
Fax : 01202 820478
email : Julia.Palmer@JCPlaw.co.uk 4.10.11

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Brief Notes on the Code

The use of CCTV is a part of everyday life for many licensed premises, from convenience stores to pubs and clubs. The Police, in particular, value this tool in the prevention or control of crime and disorder. But are you aware of your serious obligations if you have CCTV operating?.

Data Protection Notification
The use of CCTV and ID scanners in public places, which process the images of individuals, is covered by the Data Protection Act 1998 (the DPA). The Act is based on compliance with 8 basic principles. The enforcing and registering authority is the Information Commissioner. The ICO’s information line for further details is 01625 545745. There is an updated Code of Practice aimed specifically at registration of the CCTV operation, details of which can be found on the IC’s website www.ico.gov.uk.

The 8 Principles effectively state that data (including CCTV data) must be :

1. fairly and lawfully processed
2. processed for limited purposes and not in any manner incompatible with those purposes
3. adequate, relevant and not excessive
4. accurate
5. not kept for longer than is necessary
6. processed in accordance with individual’s rights
7. secure
8. not transferred to countries without adequate protection

unless exemptions apply to one or all of those principles.

Failure to notify formally and/or comply with the principles, could lead to Enforcement Action and/or a prosecution. There is also a possibility of a successful claim for damages in civil law for an individual adversely affected.

Notification can be done on-line, or by applying for a Notification Form. The fee is currently a modest £35, and registration is renewable annually.

The checklist for exemptions can be found in the ICO’s Notification Handbook, but is unlikely to be available for most of our readers.

The Code
The CCTV Code of Practice 2008 (the Code) advises that “most uses of CCTV by organisations or businesses will be covered by the DPA and the provisions of this code, regardless of the size of the system”.

The Code helps to explain what is in the DPA, and gives guidance on both compliance and good practice. It requires you to carry out impact assessments, and implement policies, to enable you to complete the necessary Notification. Future failure to comply with them could lead to enforcement.

The main questions asked of your CCTV include
• Is it really necessary and proportionate
• are the recorded images of suitable quality for purpose
• Is it unacceptably intrusive
• Are the camera locations covering only those on your property, and do not unjustifiably invade privacy
• Is your recording system up to standard, and properly maintained
• Do you have the correct safekeeping and storage facilities, which are restricted to authorised staff
• Are there proper viewing procedures in place (as a rule, customers should not be able to view monitors)
• Are your staff trained in Disclosure requirements and procedures : these need to be followed very carefully to prevent problems and will include careful logging of any Disclosures made
• Are you keeping images for too long : as soon as the need for retention has passed, they should be destroyed
• Is the correct signage etc, advising of the use of CCTV, in place
• Is your appointed Data Controller keeping up to date with the administrative duties and has sufficient knowledge to assist with requests for images.

This is far from a comprehensive list of all that is entailed in complying with the DPA, and further information can be obtained from the ICO.

Licence Conditions
The problems may not end there. The trend of imposing CCTV conditions on Premises Licences is gathering momentum, and there is a prospect of such conditions becoming more widespread under the discretionary condition aspect of the draft Code of Practice currently under deliberation (under the Policing and Crime Bill). This trend is feared by the Information Commissioner’s Office (ICO), who state that “pubs and clubs should not become information gathering sources for police”.

If you are being asked to accept such a condition, you should take advice from a licensing lawyer. Is it really necessary and proportionate? Could it impede the civil liberties of customers? Does it offend against the DPA principles? Is the wording OK? Conditions may impose, eg, a duty to have a fully operational system at all times you offer licensable activities. If the system breaks down, you are probably in breach of the condition. Not only could this lead to the risk of prosecution and review of the licence if the disrepair was ongoing, but it could lead to possible immediate closure by the Police.

Be aware that not only are you using Big Brother to watch others, Big Brother is watching you, and failure to comply with your various duties in operating your CCTV could bring some very unwelcome attention and repercussions.

Staff
This requirement to register the CCTV use exists even if you have the obligatory permission in respect of your staff records etc.

Disclaimer
The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult a licensing lawyer for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained in this article.
The information and materials are provided on 2.6.09 as updated on 31.3.11, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.

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MORE CONTROLS ON LICENSEES
Proposed by the Policing and Crime Bill 2008


Brief notes on the proposals by
Julia Palmer of JCP Law






This Bill, which runs to 155 pages, is primarily launched under the tag of making the Police more accountable, and giving them more powers to “protect vulnerable groups”, especially those caught up in prostitution and under age drinkers, and to tackle low level crime.

The Bill had its first reading on 18 December, and is speeding through Parliament at a gallop. The first main debate was on 19 January, and it is now at Committee stage. I anticipate that it will become law shortly, and that it is unlikely to change dramatically from the current format.

In purporting to achieve its aims, the Bill includes three particular provisions which will affect Premises Licences holders, especially those selling alcohol. They are :

1. Lap dancing establishments are to be regarded as Sex Establishments, requiring additional licensing under the relevant legislation. This proposal will be the topic of another article, but for any licensee currently offering these facilities regularly, this will cause considerable concern because, amongst other things, of the likely substantial additional costs this will involve. There is also a possibility of the application being refused on saturation grounds.

2. The “three strikes” rule under s147A Licensing Act 2003 will be reduced to “two”. This was discussed in my article dated 2.9.08 when this proposal was first mooted. That can be found on my website (www.jcplaw.com), or contact me for a hard copy.

3. The introduction of additional mandatory conditions on the Premises Licence. This article will look further at this proposal, which takes up only a couple of pages of the Bill. The proposals may not appear particularly threatening at first glance, but a closer look, coupled with the comments noted in some of the Parliamentary debates, certainly raises some serious questions and consideration of implications for licensees.

Currently, the only mandatory conditions on Premises Licences are found at ss19-21 Licensing Act 2003. These cover requirements for the sale of alcohol, provision of door supervisors, and film exhibitions.

Under this Bill, two new additional sets of mandatory conditions are proposed to be included in the Licensing Act 2003:

1. A maximum of 9 imposed by the Secretary of State (new s19A), and
2. An unlimited number imposed by the Licensing Authority by way of Resolution (new s21A).

S19A Mandatory Conditions
The actual conditions are not set out, but will be specified by the Secretary of State. It appears that such specification is likely to be linked to a new Code of Practice to be imposed on the licensed trade. There is a possibility that some of the Codes will be voluntarily, whilst others will be mandatory. The mandatory Codes will probably become the mandatory conditions under this section.

A maximum total of 9 are allowed.

Any condition imposed under this provision must be appropriate for the promotion of the licensing objectives.

The Code
The Code is likely to centre on the issues of irresponsible drinks promotions, advertising restrictions, potential minimum pricing, reducing glass sizes, a requirement for staff training, curtailment of drinking after 3am, cheaper soft drinks and water and similar issues. It is likely to be based on the outcome of research, as summarised in the Regulatory Impact Assessment.

According to that Impact Assessment, it is anticipated that, even for a well run community pub causing no problems to anyone, the cost of complying with the Code could be in the region of £1,100 a year. Estimates of costs of £300m a year to the trade as a whole in lost revenue and increased staff training etc, are being forecast, although these are a “guesstimate”.

At least one minister is pushing for on-line consultation, but it is probable that consultation will primarily comprise discussion with/representations from designated representative groups.

S21A General Conditions in Particular Localities
If
• there has been public nuisance or annoyance, or disorder, in the locality
• which is associated with consumption of alcohol, and
• there is likely to be a repetition, and
• it is appropriate to impose conditions to deal with the problems

then the Licensing Authority may resolve (and must consider a resolution on application of a responsible authority) to impose general conditions on all existing and future licences.

Government Guidance, and procedures to be implemented by Regulation/s, must be followed. These will include consultation with responsible authorities and licensees.

Appeal provisions are likely to be implemented by the same Regulations, as is further Guidance from Government on how Council’s should deal with Reviews. That could encourage a stiffer stance than is currently being seen in some areas.

There is a possibility that such standard conditions could, if the circumstances warranted it, cover such subjects as use of polycarbonate glasses, last entry times, street marshals, etc.

There is potentially no limit on the number of such conditions that may be imposed.

Slipped in to the amendments schedule of the Bill, is a requirement on the licensee to exhibit all the conditions attached to the licence alongside the Summary, if that does not include the information. There are criminal sanctions for failing to comply.

Consultation
Both proposals will be in the public domain for consultation. This will probably be most effectively pursued through your trade organisations (BBPA, BII, BEDA etc) on the s19A conditions. Ensure that your representative knows your views and is strong in their lobbying. The larger Pubcos will probably wish to make their views known as well.

With the local conditions (s21A), keep your ear to the ground, watch the press and if such a proposal is published, be sure to make your voice heard on consultation. If you are a manager, make sure that your Company knows what is proposed. If you are a tenant, let your BDM know. The proposals could have an adverse effect on the value of the licence or the income of the site. They may also want to have a say, and may be prepared to take it through the stages, including appeal.

Licensees may need to consider an appeal if the standard conditions proposed would have a detrimental effect on the business.

What appears to be a comparatively innocuous piece of legislation could be the final nail in the coffin of some establishments, which are already suffering under the weight of an increasing compliance burden, together with an increasingly depressed market.
Disclaimer The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult me for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained on this website. Transmission of the information contained on this website is not intended to create, and receipt of it by you does not create, a solicitor-client relationship. Nothing in this article shall constitute a binding offer to perform any legal service in any legal jurisdiction.
The information and materials are provided on the date shown, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.
©Julia Palmer JCP Law 3.2.09
Potterne Farm Cottage, Potterne Way, Wimborne, BH21 6RS
Telephone : 01202 813658
Mobile : 07866 265152
Fax : 01202 820478
email : Julia.Palmer@JCPlaw.co.uk

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CLOSE, CLOSE, QUICK NICK, CLOSE
Or a dance to the music of “Time, please - we’re closed”.


When you started out on this career path, I doubt that you expected to be branded as public enemy number one. It must feel a little like that, though, sometimes when press and Government seem to blame all the country’s ills on those selling alcohol. Just look at the raft of legislation passed over the last decade to punish you for getting it wrong (or for serving those who have!).

This brief note deals just with some of the powers to close your premises, either literally, or by stopping the sale of alcohol. When the police or council official arrives to tell you to close down, you need to be sure that they really do have the power to do just that. If they do, and have correctly followed the procedures, failure to comply could find you facing a very lumpy fine and/or behind bars.

What Closure?

Who Why Until

s161 Licensing Act (LA) 2003 Closure Order
Police Inspector Is or likely to be disorder at or Max 24 hrs
In vicinity of premises, or nuisance

S169A Licensing Act (LA) 2003 Closure Notice
Police Breach of the “3 strikes” on Max 48 hours
Superintendent/ under 18 alcohol sales suspension
Trading Standards (soon to become 2 strikes?!) alcohol sales
Inspector if accepted

S147B Licensing Act (LA) 2003 Suspension of licence
Magistrates On conviction under “3 strikes” Up to 3 months
Rule (s147A LA 2003)

S1 Anti-Social Behaviour Act (ASBA) 2003 Closure Notice
Police Premises have been used to use, Case heard by
Superintendent produce or supply Class A drugs Magistrates
And associated disorder within 48 hours

S2 Anti-Social Behaviour Act (ASBA) 2003 Closure Order
Magistrates As above – must find it necessary Up to 3 months
To prevent disorder recurrence

Police As above – can apply for extension Up to 3 months
Superintendent (Total 6 months)

S118 & Part 1A Anti-Social Behaviour (ASBA) Act 2003 Closures Notice
Police Significant and persistent disorder Case heard by
Superintendent or persistent serious nuisance Magistrates
Or LA officer in last 3 months within 48 hours

S118 & Part 1A Anti-Social Behaviour Act (ASBA) 2003 Closure Order
Magistrates As above – must find it necessary Up to 3 months
To prevent recurrence

Police As above – can apply for extension Up to 3 months
Superintendent (Total 6 months)
Or LA officer

S19 Criminal Justice and Police Act (CJPA) 2001 Closure Notice
Police or Local Unauthorised sale of alcohol May not apply
Authority officer

S21 Criminal Justice and Police Act (CJPA) 2001 Closure Order
Magistrates As above – use continuing or likely to Until certified
OK by Police/LA
Or discharged
By Court


It couldn’t happen to me, could it?

Picture this : a hot August night - its holiday time and the boys are in town. Your pub customers are enjoying the 21st birthday party, with the funky DJ you have brought in for the occasion. You have no garden, so some people are on the street smoking, and as well as some of the windows being open, customers are in and out of the front door like the proverbial fiddler’s elbow.

The council licensing team turn up with the Police, following a noise complaint from some of the usual neighbours. You could instantly face, for example :

LA Closure Order – the police are worried about it all sparking off in the town, and there is also the noise nuisance, and/or
Noise Act 1996 sanctions – these include on the spot fines and possible confiscation of musical equipment if you don’t heed the warnings, and/or
Environmental Protection Act 1980 Abatement Notice – in respect of the noise from the premises and/or
ASBA Closure Notice – you are told that this is the culmination of an ongoing investigation by Police and/or Council into serious and persistent intimidating anti-social behaviour complaints associated with the premises and/or
CJPA 2001 Closure Order - the EHO says you are in breach of your noise limitation condition, and the CCTV your licence says you must have is on the blink. A Government Guidance note is waved at you to point out that, as the licence conditions are in breach, there has been an “unauthorised sale” of alcohol.

Faced with this arsenal, you need to check that the officers in question have the correct authority and are properly following procedure, so on the blower to your licensing solicitor straight away to check. Police etc are generally exempt from paying you compensation if they get it wrong. It is surprising how often they do.

Review of the Licence
As well as the above is the possibility of Review of the licence, with or without prosecution for breach of licence conditions. Review will follow anyway under LA Closure Order or ASBA Closure Notice. Any of the longer closures ordered by a court will be in addition to any sanction on Review.

The outcome of a Review application can include revocation (permanent closure); suspension for up to 3 months (temporary closure); and/or removal of the DPS; and/or restrictions on times of opening or licensable activities; and/or imposition of (more) conditions. It is possible that the council will be persuaded to take no action, but this is rare. The decision can be appealed only to the Magistrates’ Court, unless on a point of law to the High Court (expensive!).

It is alarming, but common sense, care and good advice should all help prevent time being called by anyone other than you.

©Julia Palmer 12.12.08
Disclaimer The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult me for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained on this website. Transmission of the information contained on this website is not intended to create, and receipt of it by you does not create, a solicitor-client relationship. Nothing in this article shall constitute a binding offer to perform any legal service in any legal jurisdiction.
The information and materials are provided on the date shown, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.


JCP Law
Potterne Farm Cottage, Potterne Way, Wimborne, BH21 6RS
Telephone : 01202 813658
fax 01202 820478
email Julia.Palmer@JCPlaw.co.uk

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POKER IN PUBS
Brief guidance notes by Julia Palmer of JCP Law

I originally offered some notes on commercial poker in licensed premises, in September 2007. In September 2008, the Government issued an updated Advice. Pubs and clubs with a Premises Licence permitting sale of alcohol on the premises, can continue to offer some gambling, including limited poker, on compliance with the rules. Membership clubs may be entitled to a Permit allowing higher stake and prize gambling : call or email if you wish to explore this aspect further.

These rules remain strict, and you need to ensure that you are keeping to them. Failure to do so could lead to some hefty penalties and could possibly have an adverse affect on your Premises Licence.

I am repeating the main “do’s and don’ts” of running a poker game, as updated by this new Advice.

You must

• Comply with the Code of Practice on poker in pubs (which can be obtained from the Gambling Commission’s website : www.gamblingcommission.gov.uk/client/mediadetail.asp?mediaid=184).

• Have a Gaming Supervisor who must ensure that the rules of the game are made available to participants and that games are played in a “pleasant atmosphere” which means no intimidation, coercion, cheating or similar. In pubs, this will be the DPS.

• Ensure that the Gaming Supervisor records the number of games, players and amounts staked (to ensure limits are not exceeded).

• Only allow gambling in premises (or parts) restricted to adults. The usual ID (ie PASS approved, passport and photo driving licence) is required to check age of customers on such occasions. If a child (ie anyone under 18) makes repeated attempts to gamble, then the Gaming Supervisor is responsible for their welfare. This will include warnings and ultimately reports to the Gambling Commission and police. A written policy as to how this will be effected must be in place.

• Secure all the gambling equipment when not in use : once again this is the responsibility of the Gaming Supervisor.

You must not :

• Exceed the permitted stakes. These are currently £5 per GAME (not hand) with an aggregate stakes limit per pub per day of £100. The Code looks for this to be by way of chips provided by the premises, not cash.

• Allow the prize pot to be anything other than “low level” (ie current maximum of £100 cash and/or money’s worth per game). This includes a prize paid at the conclusion of more than one game played for points, or the final – and each game - in a tournament.

• Charge any entrance fee or other payment to play (overt or hidden).

• Make any deductions, levies or similar from either stakes or prizes.

• Allow any linked games across premises (and this will include, eg, where the prize is the ability to play in an invitation cash tournament in a casino).

• Allow under 18s to play.

• Have a hyperlink to a foreign gambling website which may fall foul of the advertising restrictions.

There are several companies offering to run poker in pubs. Do remember that the responsibility for ensuring that all the above requirements are met remain yours (the Licence holder’s/DPS) so every care must be taken to fully comply.

Disclaimer The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult me for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained in this article. Transmission of the information contained is not intended to create, and receipt of it by you does not create, a solicitor-client relationship. Nothing in this article shall constitute a binding offer to perform any legal service in any legal jurisdiction. The information and materials are provided on the date shown, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.
© Julia Palmer 31.10.08
JCP Law
01202 813658 Mobile 07866 265152
Julia.Palmer@JCPlaw.co.uk

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WILL THE “3 STRIKES” RULE ON UNDER 18 SALES SOON BECOME 2?

Last year I advised of the rule introduced through the Violent Crime Reduction Act 2006. To prevent “persistent” sales of alcohol to children, additional powers have been given to the Police if underage sales have taken place 3 times during a 3 month period.

These powers are the ability to

1. prosecute the Premises Licence holder for persistent selling with a fine on conviction of up to £10,000 and/or suspension of the licence for up to 3 months.
2. prohibit the sale of alcohol for a 48 hour period chosen by the Police, by way of Closure Notice, as an alternative to prosecution.

There will be the necessary proof of underage sale on :
• a conviction in the Magistrates’ Court for such a sale
• a caution given for such a sale
• a Fixed Penalty Notice (PND) to staff for such a sale

Direct evidence of a failed test purchase, even without any of the above resulting, may be sufficient to prove an underage sale.

There is no due diligence defence available. The only defence is that no-one could have suspected that the buyer was under 18 or that the ID produced would have fooled most people. With an organised “sting” it is unlikely that either of these defences will be available.

The premises user under a TEN is liable to the same sanctions.

There are now moves afoot to reduce the 3 strikes to just 2.

Test Purchasing Campaigns (“stings”)

These campaigns are usually a joint enterprise between Police and Trading Standards. If the test purchase is made (ie a sale is made to an under 18), you are likely to be targeted on at least two further occasions to see if the “3 strikes” rule will apply to you. If it does, you could find yourself the subject of a Review application even if you have failed only once. Those who fail the three times have often found themselves facing both a Review seeking revocation of the licence, and prosecution. This is both devastating for those involved and potentially very costly. It could ruin your business.

With the due diligence defence being swept away on this new offence, Premises Licence holders need to be very wary. You need to ensure that your staff are really up to date with their under age sales training and are complying with your instructions. You should review your training, and ensure that you and those selling alcohol, are fully familiar with the SWERCOTS guidance. Adopt the Challenge 21 policy if you have not already done so. If you face difficulties with youngsters in your area, consider a Challenge 25 Policy. This is no time for complacency.

There is a possibility that you may not discover that you have one or more “strikes” against you until it is too late. For example, if either no action is taken by the Police/Trading Standards officer concerned on a sale being made, or if a PND is issued, or a manager cautioned, and you are not told. Especially where the Premises Licence holder is not the same person as the DPS, or does not have day to day contact with the site, a system for staff updates and reporting should be immediately enforced with disciplinary sanctions for staff that fail to comply with your strict requirements.

It appears as though a Closure Notice could possibly be issued at the same time as the third “strike” occurs. The damage to your business having to close for two days over a busy weekend (it is unlikely that the Police will choose early weekdays!) is to be avoided at all cost, and requires your immediate and ongoing attention. This recourse does not, however, appear to have been used by the Police in the Bournemouth area.

If you are faced with a Closure Notice (which must be delivered to site in opening hours to the person who appears to be in charge) you should immediately get in touch with your licensing lawyer to discuss any options that may be available and, more importantly, the validity of the Notice. Contact should also be made on any request for an interview under caution, summons or Application for Review in respect of your Premises Licence served by the Police or Trading Standards.

Disclaimer The material contained in this article is intended to provide general information only. The information contained or any views expressed do not constitute legal or professional advice and should not be relied upon as such. You should consult me for appropriate legal advice based upon the particular facts of your case or matter, and you should not take or refrain from any action based upon the information contained on this website. Transmission of the information contained in this article is not intended to create, and receipt of it by you does not create, a solicitor-client relationship. Nothing in this article shall constitute a binding offer to perform any legal service in any legal jurisdiction. The information and materials are provided on the date shown, and although I endeavour to ensure that the content is up-to-date, it may not reflect the most current legal developments.

©Julia Palmer 2.9.08 JCP Law
Potterne Farm Cottage, Potterne Way, Wimborne, BH21 6RS
Telephone : 01202 813658 Mobile : 07866 265152
fax 01202 820478
email Julia.Palmer@JCPlaw.co.uk

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A brief Guidance note for Premises Licence holders by Julia Palmer of JCP Law


The Machines

The Gambling Act 2005 came into force in September 2007. This now covers and controls the use of all gaming machines. This note deals only with the type of gaming machines usually found on licensed premises.

Gaming
The definition of gaming is still very much as before, that is to say that it is a game of chance played for a prize. If it is a game of skill, therefore, it is not gaming and does not require authorisation under this legislation. If the game involves both chance and skill, then effectively the ordinary skill aspect has to positively outweigh the chance element to avoid the requirement for authorisation.

AWP and SWP machines
The above definition of “gaming” basically means that a Skill with Prizes machines (SWP) will not require a Permit.

An Amusement with Prizes machine (AWP) will continue to need to be authorised by a Permit.

Categories of Machine
There are now 4 categories of machines, which are defined by the stake and prize :

Category A Casino machines

Category B 4 different types of high prize machine (prizes ranging from £250-£4,000

Category C Maximum stake of 50p and prize of £25

Category D Stakes of 10p and £5 cash or 30p and £8 non-monetary

The stake must be by cash or token, not by credit or debit card.

AWPs found in licensed premises will usually be Category C. They may be Category D, but it is unlikely as they are not usually very popular.

Some licensed premises which have club style rules in force may have category B3 or B4 machines. These were formerly authorised under Part III Gaming Act 1968, with a 5 year registration. These will require a Club Machine Permit, which is only available to a members’ club style set-up, where the machine prize money is used primarily for the benefit of members.


Supply of Machines

As before, the supply of Gaming Machines, and the technical requirements for such machines, are very strictly controlled. Certain information must also be clearly given and displayed on the machines.

If a machine is offered which does not meet with these strict requirements, or for which there is no authorisation, then a fine of up to Level 5 (currently £5,000 and/or up to 51 weeks imprisonment) could be imposed on conviction.

A licensee should only allow reputable machine suppliers to install a machine on their site.


Authorisation

As before, this will be a Permit. Previously, this was issued by the Court, but the controlling authority is now the Local licensing authority (the council). It will be no surprise to licensees who have experienced the result of several changes of jurisdiction from Court to Council to learn that the fees for the Permit are substantially increased.

HM Revenue and Customs Licence
The Permit is in addition to the continuing requirement for a Customs and Excise, or HMRC as it is now called, licence for each machine. This is the
Machine duty, and the penalties for failing to have such a licence are severe. The licence should be displayed on site. It is renewable annually.

Existing Permits
The good news is that, with just a simple notification to the Council, your existing Permit (on the assumption that it was in force on 31 August 2007) will continue to authorise the machines allowed under that Permit, until the expiry date shown on the Permit or until the Premises Licence is transferred (or, heaven forfend, revoked, failed or surrendered).

If the Premises Licence is transferred, then the Permit can be transferred by giving written notice at the same time, and paying the £50 fee.


2 AWPs
If you have, or only want to keep, 2 AWPs under your existing Permit, then all you need to do to retain the advantage of these machines is to give written notice to the council in advance of expiry. This relates to Category C and D machines only. The fee set by regulations will be payable. This is currently £50.

If you do this, you will gain both continuation and grandfather rights, and will be able to continue to use the machines. The Council cannot impose restrictions or conditions, although they may be able to insist on the provision of additional information.

You must, however, continue to comply with the Gambling Commission’s Code of Practice for the use of such machines.

Misuse of the machines etc could lead to a Removal Order, so stopping you making gaming machines available.

3 or more AWPs
If you currently have, or want, more than 2 AWPs, the Premises Licence holder must make formal application for an Alcohol Licensed Premises Permit. You will need to follow the requirements to complete the appropriate form, provide the requisite information and pay the fee (currently £100).

The Council is obliged to have regard to the licensing objectives set out in the Gambling Act (not the same as the Licensing Act objectives) and any Guidance issued by the Commission. They have a complete discretion to consider any other matters they think relevant although they cannot refuse without giving you a chance to make representations.

They may grant as requested, grant with a different number or category of machine, or refuse. The fee is unlikely to be refundable.

Annual fees
A fee is payable within 30 days of the anniversary of the issue of the Permit. Failure to pay within that time will result in the loss of the Permit. There is no obligation on the Council to remind you of the date, so diarise!

New Permits
A formal application will be required, although the lower fee of £50 is payable if you only want 2 machines, and there is an automatic entitlement to the grant free from conditions (other than mandatory conditions).

If you want 3 or more machines, then you will be subject to the above rules. The fee payable is currently £150.


Codes of Practice

The Gambling Commission has issued a Code of Practice by which Permit holders must abide. Full details can be found on the Gambling Commission’s website.

The Code has both mandatory and advisory aspects.

The location and operation of machines is mandatory and you must :

1. Have them sited in a place where they can be properly supervised.
2. Arrange for proper supervision
3. Not allow them to be so close to an ATM that a machine user would not have to move away from the machine to use the ATM. They must have to stop their gaming to use the ATM machine.

You are advised to take steps to prevent under 18s gambling, including Challenge 21 style checks of ID and ensuring that staff are aware of the duty to prevent under 18s playing the machines.

There are specific self-exclusion measures that a customer with gambling problems can adopt under the Act. You are encouraged to support and assist anyone who advises you of a self-exclusion agreement by preventing them from gaining access to or playing on the machines. The Code gives additional guidance in this respect.


Disclaimer
Every care has been taken to ensure that the information contained in this note is accurate, but no liability can be accepted if this is not the case. Anyone with a problem relating to the legislation, or who wishes to make an application, is advised to seek independent legal advice so that their particular needs and requirements may be addressed.


©Julia Palmer 06.02.08

JCP Law
Potterne Farm Cottage
Potterne Way
Wimborne
BH21 6RS

01202 813658
Julia.Palmer@JCPlaw.co.uk