Still masters in their own house

The refusal of a judge in the Court of Appeal to give leave for a further hearing against Buckingham Pubwatch in respect of a banned customer was something I predicted a while back.

It must have been an exceedingly worrying time for the pubwatch officers, however, even with the financial support of Tim Martin of JD Wetherspoon. To be taken to this level of the judicial system is not something that happens very often to volunteers, and it is to be hoped that this type of vendetta does not deter other good licensees from assisting in their own local schemes.

The question being asked of me is whether, if the result had ever gone against them, it would have allowed individual customers to succeed in an action against a licensee who banned them. My view remains that clearly it would not.

There is simply no grounds to use the courts against a refusal to serve, because this is the licensee's right. The person may not like it, but no actual right exists for a person to demand that the pub licensee does business with him, so the courts will not intervene.

The question before the courts on this occasion was, as has been reported, a technical one: whether a pubwatch was a public or official body such that its decisions were capable of judicial review by the higher courts.

Every judge has so far ruled that it was not such a body and its decision was not capable of being challenged in this way.

The latest decision was, in fact, a preliminary refusal, not a full hearing. The applicant had already been refused leave to appeal in the Administrative Court and so was asking directly for that leave to be granted by the Court of Appeal itself. The appeal court judge decided once again that there was no justification in the action and that it would proceed no further.

So pubwatch decisions taken to ban someone who has committed a violent or unacceptable act in respect of a member will stand. So will the individual licensee's right to issue his or her own ban, or refuse to serve, a person whom they do not wish in their premises.

There is also, of course, the right for a pubwatch or a group of licensees to ask a court for a ban on someone who has committed violence or threatened violence on licensed premises. This right seems to be maintained for the foreseeable future, as the Ban the Thugs Act has been reprieved.

Q&A​

Poker among customers​

Q. Can you tell me whether there is a difference between poker leagues or competitions organised through one of these firms in the pub and poker played by customers themselves? A group of regulars want to play for points only — they say they know playing for money would be illegal. How do I stand?

A. I recognise that this creates a difficulty, now that the actual playing of poker is so popular.

In truth, there is no difference in law between poker organised by or on behalf of the pub, and poker played by customers.

Both place certain legal responsibilities on the licensee.

Gaming means playing a game of chance for a prize. This can either be money itself or money's worth, such as drinks, tickets or goods. The value of the prize for games of poker is limited by law in public houses and the prize can either be provided by the management or derived from the stakes which each player might put down.

However, if the players put no money in, and no prize at all is given, other than the honour of winning, then there is no gaming. Poker then becomes like any other card game, played for entertainment. As long as you are sure that there is no element of gaming involved and the players are doing it for their own amusement, then you can allow it to take place.

However, if there is any suspicion that an arrangement is being made by which players settle up afterwards, or are using or "buying" chips of a specified monetary value, then you must intervene, because it places you at risk.

The local authority or the police are entitled to take action under the gambling laws if they suspect that the limits are being breached and that you are not properly controlling the gaming on your premises.

Caution not recorded​

Q. I have just been told that a part-time member of staff who left last month had been cautioned for selling to a minor. He was alone in the bar, as I was not present on the premises at the time. I have had nothing from the police.

I hold the premises licence.

A. As I have advised before, it is vital for licence holders to have information on every occurrence of this kind. Staff must be warned that concealment of an incident involving the police or local council officials must not occur, and that it is a disciplinary matter. You should immediately send or give a written notice to all staff reminding them of their obligations and advising them that failure to pass on relevant information could result in discipline or even dismissal.

The reason for taking the strong line is that this incident could eventually jeopardise your licence. The new "three strikes" law, possibly down to two strikes soon, counts any incident of an underage sale, not just prosecutions, as a mark against the premises. So even though you were not present and may have used due diligence in advising your staff of the law and telling them to take necessary precautions, this caution does indeed go against you for the next three months. The fact that the person has left will not make any difference to the relevance of the caution against the pub itself.

What it means is that two more examples of underage selling during this period could result in a separate prosecution of you as the premises licence holder, with a possible suspension of the licence, or the issuing of a closure notice direct by the police or trading standards without court intervention, requiring you to close for up to 48 hours at a specified time.

Although the police are not obliged to give details of a caution to the premises licence holder if he is not present, many forces will discuss issues with the DPS or holder as a matter of policy.