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Guidance

Regulatory decisions: Procedures and guidance for regulatory hearings

Guidance to assist Directors or the Regulatory Panel to carry out their regulatory functions in accordance with our policies and procedures and to comply with the law.

3 - The hearing

Appointment of the Chair of the Panel

The Chairman of the Gambling Commission shall, if present, preside at all meetings of the Regulatory Panel. If the Chairman is not present, he may designate a Commissioner to chair the meeting. If there has been no such prior designation the Commissioners present at the meeting shall elect a Chair for the duration of the meeting.

Voting

Decisions of the Panel will normally be made by consensus. Where that cannot be achieved the Panel Members are required to vote, in which case the Chair of the Panel (the Chair) will have a casting vote in the event of a tie. In the case of a Director’s hearing the Director is the sole decision maker.

Attendance of the applicant and their representatives

The Panel or Director would normally expect that the licensee and relevant persons identified by the Commission’s officials will attend the hearing. Licensees may also be accompanied by a legal representative.

Where a licensee has indicated that they wish to appear or be represented before the Panel or Director, but they or their representative then fail to attend at the hearing without good reason the hearing may continue in the licensee’s or their representative’s absence. No inference should be drawn from the licensee’s absence.

Attendance of representatives from the Commission

The Chief Executive may designate such Commission officials as they consider appropriate to attend meetings of the Panel or Director to assist or advise them, but those officials may not take part in the decision-making process of the Panel or Director. The Commission may also be legally represented at hearings.

Promoting an investigative approach

All of those involved in hearings are expected to assist the Panel or Director to determine the relevant facts. The Chair or Director should direct those present to adopt an investigative rather than an adversarial approach. The purpose of this provision is twofold:

  • to ensure that all relevant issues are explored fully
  • to ensure that the process does not become unnecessarily adversarial in nature.

Should the Chair or Director consider that the approach being taken by either the licensee, or their representative, is obstructive or unnecessarily adversarial, they should intervene to ask the licensee, or their representative, to refrain. If this does not resolve the matter, it may be necessary for the Panel or Director to adjourn to consider the issue in private. The Chair or Director may then decide to issue appropriate directions as to the future conduct of the hearing.

The Panel or Director should take an active role in the proceedings through questioning the licensee, or members of the Commission’s staff who are present, and seeking clarification of points through the licensee’s representative, if they have one. Where the Panel or Director consider that all the relevant issues have not been raised or fully explored in the course of the evidence they will need to make sure that such issues or deficiencies are, as far as possible, covered through their questioning.

It is particularly important that the Panel or Directorare satisfied that they have enough information before them to make a decision, where a licensee does not appear at the hearing and is not represented.

Meetings by telephone or video conference

Meetings of the Panel or hearings before a Director may be conducted face to face, by telephone or video conference.

Dealing with regulatory matters on the papers alone

If both parties are content for matters to be dealt with on the papers alone, then the Panel or Director may meet and carry out their work in the absence of the licensee. The Panel or Director should still adopt the decision making process described within the following section of this guidance: '4 - The decision making process for regulatory decisions'. No inference should be drawn from the applicant’s absence.

Determining whether the hearing should be in public or private

The Commission’s policy is that hearings are held in private (i.e. in the absence of persons other than the directly interested parties). However, there may be occasions when the licensee would like the hearing to be in public and as such careful consideration should be given to such a request.

In deciding whether to grant such a request, the Panel or Director will need to weigh up any potential prejudice to the rights of any third parties or prejudice to the overall fairness of the process against the licensee’s reasons for requesting a public hearing. However, even if the Panel or Director does decide to proceed in public, they may decide to exclude the public and the press from all or part of the hearing where they consider that a public hearing may adversely affect the fairness of the process.

Deliberations in private

The Panel or Director may determine, at any time, to deliberate in private (i.e. in the absence of any other person, including the directly interested parties). If legal advice is sought and given whilst the Panel or Director is in private session the Chair or Director should invite the legal adviser to repeat the advice in front of the licensee so that they have an opportunity to comment on the advice that has been given.

A legal adviser will normally be present at all proceedings of the Panel or at the proceedings for a Director’s hearing. The legal adviser’s role is to provide the Panel or Director with any advice they require to properly perform their functions, whether or not they have requested that advice, on:

  • questions of law and mixed fact and law
  • matters of practice, procedureand policy
  • the range of outcomes or sanctions available
  • any relevant decisions of the superior courts or other guidelines
  • other issues relevant to the matter before the Panel or Director
  • the appropriate decision-making structure to be applied in any given case.

The legal adviser may also:

  • assist the Panel or Director by reminding them of evidence
  • ask questions in order to clarify the evidence and any issues in the case
  • assist the Panel or Director in formulating their reasons and recording the reasons.

Any legal advice given in private should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open session and give the licensee an opportunity to comment on the advice that has been given.

Introductions

The Chair or Director should introduce themselves and any other Commission officials present. They should also confirm the identity of those appearing before them.

Taking part in a hearing may be a stressful experience for the individual involved. It is important that the Chair or Director is sensitive to this and seeks to put them at their ease so that they can participate fully in the process.

Representations and evidence

The Panel or Director may consider oral, documentary or other evidence which appears relevant to consideration of the case. The legal adviser can advise the Panel or Director on any issue which arises as to the admissibility of, or the weight to be given to, any item of evidence.

At the start of the hearing, the Chair or Director should confirm that the licensee and their representative are in possession of all relevant documentation and whether the bundle is agreed.

The Chair or Director should also check whether either the licensee or the Commission’s representatives wish to rely on or to introduce any documents that are not already included in the case papers. If either party does wish to do so, the Panel or Director will need to consider the nature of any such document, the reasons for it being produced at a late stage and whether its admission would be likely to assist in the fair disposal of the hearing. It may be necessary to allow a brief adjournment for the licensee or the Commission’s representatives to read the document in question. This is also the point at which any other issues relating to the documentation can be clarified.

Dealing with disputed evidence cases

Where some material facts of the case are disputed, the Commission’s representative will be permitted to make an opening statement about the case. The licensee will then be given the opportunity to reply either in person or through their representative.

The Commission’s representative and the licensee may present relevant written evidence relating to the facts in dispute and may, with the permission of the Panel or Director, call witnesses.

As a general rule the Commission does not expect that it will be necessary for witnesses to attend hearings. In those exceptional cases where witnesses are to be called to give oral evidence, the Panel or Director should seek confirmation at the outset of the hearing of which witnesses are to be called and how long their evidence might take.

In those cases where witnesses are to be called, any witness statements that have been prepared will normally be taken as the evidence-in-chief of that witness.

Normally whoever calls the witness will be allowed to ask some questions to clarify their statement before the witness is asked questions by the other party or the Panel or Director.

The Chair or Director should ensure that there is opportunity for the witness to be re-examined, if that is appropriate. However, such questioning should be confined to any ‘new’ areas arising from the questioning and should not repeat the original questions posed. Exceptionally, the Panel or Director may allow further questioning by the other party on the new areas.

The Chair or Director should ensure that this stage is limited to questioning of the witnesses and not to the making of statements.

Witnesses may be recalled at the discretion of the Panel or Director. For example, it may be appropriate if it is necessary to resolve any conflict in the evidence. If a witness is recalled it is for the Panel or Director to determine the scope of any further questions but the licensee and the Commission’s representative must have an opportunity to ask further questions. After receiving evidence, the Chair or Director may then ask whether the witnesses wish to remain in the hearing room or be released.

Summing up

The Panel or Director should normally permit both the licensee and the Commission’s representatives to sum up. The Commission’s representative should sum up first, followed by the licensee.

Any summing up must be confined to relevant matters which have been considered during the hearing. The Chair or Director should ensure that under no circumstances is new evidence introduced during summing up.

Requests for further information

It is particularly important that the Panel or Director is satisfied that they have enough information before them to make a decision. Where the Panel or Director decides that they need further information before being able to make a final determination they may request the licensee or Commission’s representatives to provide that information and may adjourn the hearing until the information is available. When adjourning for this purpose, the Panel or Director should give directions about the time limits for the information to be provided.

Adjournments

During the hearing it is important that the Chair or Director allows sufficient breaks to avoid loss of concentration and fatigue on the part of participants. It may also be necessary to have adjournments during a hearing for the Panel or a Director to deliberate in private or to take advice on legal or procedural matters.

Decision making

In all cases the Panel or Director will deliberate in private, in the presence of their legal adviser. The Secretariat may also be present.

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RD: Procedures and guidance for regulatory hearings - 2 - Preparing for the hearing
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RD: Procedures and guidance for regulatory hearings - 4 - Decision making for regulatory decisions
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