Poker in Pubs: DCMS Shows its Cards
Tods Murray looks at the growing popularity of poker, problems presented by the current law and DCMS plans to relax controls on the game in alcohol-licensed premises.
Article on Poker in Pubs, analysing the proposed relaxation of poker in licenced premises under the Gambling Act 2005. First published in Scottish Licensing Law & Practice in December 2006.
[2006] 35 SLLP 13
Poker is big business. A recent upsurge in interest is probably due to the increased coverage of late night poker on various television channels; the rise and rise of internet gaming; and the commercial opportunities poker may offer to licensed trade operators suffering an income drop following the smoking ban.
More and more licensees are looking to pull in business by hosting tournaments or one-off poker nights within their premises. The game’s popularity is such that it prompted the Gambling Commission to release updated guidance in July 2006; and, more recently, in the ‘Gutshot’ case has grabbed press headlines. This article attempts to provide an analysis on the legality or otherwise of poker in licensed premises and examines Westminster proposals to allow unlicensed poker in pubs.
The current law
The law here has, for the last 40 years, been contained in the Gaming Act 1968, and specifically in Section 6, which allows a licence holder to apply to the relevant licensing authority for an order under Section 6 (3) permitting the playing of games for small stakes. There are a number of restrictions:
- bankers’ games are prohibited;
- the game must provide all players
with an equal chance;
- no charge for participation may be made;
- there must be no levy on winnings; and
- the provision of gaming must not constitute an inducement to resort to the premises
It is very unlikely that Section 6 authorisations have been given in Scotland for poker games: even obtaining permission of charity bingo can be a struggle. A licence holder would have trouble convincing the licensing board that he intends to provide ‘small stakes’ poker when poker is well known as a game of increasing stakes in a collective pot. The Gambling Commission’s opinion is that ‘no effectivelimitation of stakes is practicable’ and the playing of poker is liable to lead to ‘exploitation and disorder’. Further, how does the licence holder steer clear of the ‘inducement’ trap?
The aim of a poker night would be to boost trade, but the inability to advertise or promote the game as an attraction would frustrate its purpose. What about games where there is no cash prizes? Permission for poker playing would only be required by the 1968 Act if it was being played for money or money’s worth - money’s worth is likely to be given the common law definition and would include emoluments, vouchers, goods or other items which have a value. There are poker leagues in operation where individuals play for points rather than prizes so that there is no ’gaming’ taking place. But poker will not normally be a big ‘draw’ unless there is a prospect of financial benefit. Section 40 of the 1968 Act (as amended) allows clubs, including proprietary clubs, to impose small charges for participation in non-banker games of equal chance. The original purpose of this provision was to cater for specialist bridge and whist clubs. But it has also become a popular vehicle for bingo and is now being utilised for poker games which must, of course, be conducted lawfully and in accordance with the statutory provisions.
Private poker clubs
Private poker clubs have also come into existence, claiming that they are not breaking the law because poker is a game of skill, rather than chance. In the middle of last year, the Gambling Commission announced a clamp down. According to Phil Bear, Director of Operations: ‘Poker is a great game, but properly regulated operators such as casinos employ trained staff as dealers and supervisors, they use CCTV to monitor play, they offer protection to plays, and they are closely monitored and supervised by the Gambling Commission. ‘Poker in pubs [offers] none of these safeguards and we will work with the authorities to clamp down on illegal games.’ In June 2006, in the middle of an evening tournament, police raided a Glasgow poker club, with one onlooker describing the scene as something from ‘The Untouchables’. Although no arrests were made, the police later confirmed that gaming items and poker paraphernalia were confiscated.
The Gutshot case
On 16 January 2007 Derek Kelly, chairman of the Gutshot Club in London was found guilty of offences under the 1968 Act after he organised and ran two unlicensed poker games from which he profited through entry fees and a table rake. (‘Gutshot’ is a poker term for the occasion when you receive a middle card to complete a straight.) Mr Kelly tried to argue that poker was a game of skill rather than chance, and therefore outwith the ambit of the 1968 Act, but failed and was convicted. The judge said: ‘This could have caused enormous problems for the gaming industry and given the green light for unregulated poker. I consider the prosecution were right to take this matter seriously.’ The Gambling Commission was ‘pleased to see the case concluded’. A spokesperson said: ‘The Gaming Act 1968 has always been clear... Commercial gaming needs to be undertaken in a properly regulated environment to ensure that members of the public are protected from cheating and exploitation. ‘The Gutshot has operated as a poker club with few membership or entry controls. Its facilities are very limited and its player protections would not meet expected standards… ‘Poker is a very popular game, but those involved as players or organisers in games where significant sums of money may be involved need to be aware that without proper supervision it can rapidly escalate into a high risk, volatile activity, as well as create opportunities for criminal exploitation and cheating.’
Sting in the tail
There is a sting in the tail for premises operating under an entertainment licence granted under the Licensing (Scotland) Act 1976. A number of licensing boards avail themselves of the provisions of Section 101(2) of the Act and attach a condition to the licence limiting the forms of entertainment which may be provided on the premises. In such a case, even if the playing of poker could be introduced by means of the provisions of Section 40 of the 1968 Act, it would probably be necessary to apply for a new licence authorising poker games. And under the provisions of the Licensing (Scotland) Act 2005, poker would require to be set out in the premises licence draft operating plan as an ‘activity’ proposed to be provided.
DCMS proposals
The Department for Culture, Media and Sport (DCMS) has launched a consultation (ending on 20 April 2007) regarding regulations to be published under the Gambling Act 2005 limiting the amounts that may be staked and won where gambling takes place on clubs and pubs. The Act distinguishes between members’ clubs and commercial clubs. The former will be able to apply for a club gaming permit which would poker and other equal chance games without limitations, except that certain restrictions are imposed on bingo. Alternatively, both types of clubs may take advantage of an exemption allowing them to have equal chance gaming only without stake and prize limits (although there is an expectation that the gaming will be for low stakes). But, for the purposes of the exemption, a more cautious approach will be taken to poker. Referring to ‘significant recent growth’ in the game’s popularity, the DCMS consultation document sees ‘a need to address the particular risks associated with such gaming’. The DCMS has therefore put forward a number of proposals (see box), which have not been greeted with universal enthusiasm. Opponents say that the Government is creating a recipe for a dangerous cocktail of alcohol and gaming: the more people drink heavily, the more their judgment is impaired. Dr Emanuel Moran, adviser on pathological gambling to the Royal College of Psychiatrists, said: ‘There is a tremendous amount of evidence indicating that alcohol interferes with people's judgment. Thecombination of alcohol and gambling is liable to be disastrous. ‘The stakes may be low but people can easily accumulate tremendous debts and then chase their losses. There is not going to be a council official monitoring every game.’ And Huge Swire, the shadow culture secretary, was equally critical: ‘With the growing problem of personal debt, the Government should be warning about the dangers of alcohol addiction rather than encouraging the dangerous mixture of poker and alcohol in pubs.’
DCMS POKER PROPOSALS
Clubs
Where there is no club gaming permit, the appropriate limits for equal chance poker played in members’ clubs, commercial clubs or institutes should be £1,000 in any seven day period and £200 on any day (in total stakes and prizes), with a maximum stake of £10 per person, per game.
Alcohol-licensed premises
The appropriate limit for all exempt equal chance gaming should be, £5 per person, per game. In addition, for poker, there should be limits for each premises of £500 in any period of seven days and £100 on any day (in total stakes and prizes). There should be a code of practice for gaming on these premises.
If you require further information, please contact a member of our Hospitality and Leisure Team