Licensing, compliance and enforcement under the Gambling Act 2005
6 - Criminal enforcement
This chapter sets out the Commission’s policy in relation to the investigation and prosecution of offences under the Act, including the Commission’s powers, and the relationship between criminal and regulatory investigations.
The prevention of illegal gambling
The general framework set by the Act is that providing facilities for gambling is illegal unless provided:
- in accordance with certain specific exemptions in the Act
- in certain cases, for example machine gaming in pubs and clubs and small scale lotteries, under permits or other arrangements administered by local authorities
- by a person who holds a licence issued by the Commission.
The prevention of illegal gambling is a key priority for the Commission. The Commission’s assessments will set the Commission’s enforcement priorities. Those priorities will alter to meet changes in the assessment of risks and the Commission will allocate enforcement resources to the areas of greatest risk.
Combating illegal gambling also benefits licensed operators, as the provision of illegal unregulated gambling has both a reputational and economic impact on the gambling industry as a whole.
The Commission’s powers to investigate offences under the Act
Under section 27 of the Act (opens in new tab) the Commission may undertake activities for the purpose of assessing compliance with provision made by or by virtue of the Act and whether an offence is being committed under the Act. By virtue of section 28 of the Act (opens in new tab) the Commission has the power to investigate whether an offence has been committed under the Act and may institute criminal proceedings in respect of offences under the Act in England and Wales.
In Scotland, the power to institute criminal proceedings rests solely with the Crown Office and Procurator Fiscal Service (COPFS) (opens in new tab). At the conclusion of an investigation in Scotland, the Commission may prepare a report to COPFS recommending criminal proceedings.
The relationship between regulatory and criminal investigations
As a general rule the Commission will not normally pursue a criminal investigation into a licensed operator, as in most cases the matter under investigation is likely to be capable of being dealt with by the exercise of the Commission’s regulatory powers. However, there might be circumstances where the commencement of a criminal investigation was merited. For example, if a personal licence holder were suspected of cheating under section 42 of the Act (opens in new tab) (which carries the possibility of a longer period of imprisonment, if convicted), or if a licensee knowingly misled or provided false information to the Commission, contrary to section 342 of the Act (opens in new tab).
There may be circumstances where the Commission’s investigations uncover evidence that a serious criminal offence may have been committed, which falls outside the Commission’s jurisdiction to investigate. In such cases the Commission may pass the information it possesses to the police, or another body, for consideration by them.
Deciding whether to institute criminal proceedings
The Commission recognises that there should be a separation of functions between the investigative process and the decision regarding whether or not a criminal prosecution should take place. At the conclusion of a criminal investigation, the case will be thoroughly reviewed before a decision is taken. In Scotland, this review will take place before a decision is taken on whether or not to report a case to COPFS.
The Commission will apply the Code for Crown Prosecutors when deciding whether criminal proceedings should be commenced, which involves a two-stage test:
- first, the evidence will be reviewed and an assessment made about whether there is a realistic prospect of conviction
- secondly, if there is sufficient evidence to mean that there is a realistic prospect of conviction, an assessment will be made about whether it is in the public interest for a prosecution to take place.
The Code for Crown Prosecutors lists a number of common public interest factors which either favour or are against prosecution. A copy of the code can be found on the Crown Prosecution Service’s website (opens in new tab) and in the event that the Code is revised the Commission may need to review its own processes accordingly.
In Scotland the Commission will follow the guidance to Specialist Reporting Agencies in the preparation of reports to COPFS.
Section 347 of the Act (opens in new tab) establishes prosecution time limits for offences under the Act and disapplies section 127(1) of the Magistrates Courts Act 1980 (opens in new tab). This means that any information in connection with an offence committed under the Act has to be laid before the Magistrates within the period of 12 months beginning with the date (or last date) on which the offence was alleged to have been committed. Where an offence is continuing in nature then the relevant date is the last date on which the offence was committed.
This time limit does not apply to the offence of cheating, under section 42 of the Act (opens in new tab) as cheating is triable either way. Conviction on indictment also carries the possibility of a longer sentence of imprisonment than other offences under the Act.
In appropriate cases, where the Commission has investigated a matter and both the evidential and public interest tests are met, the Commission may decide to issue a caution to the alleged offender rather than pursue a prosecution. Where a caution is administered, details of the caution will be kept on file and may be taken into account in the future if further offences are committed.
Prosecutions in Scotland
The Commission does not have the power to commence criminal proceedings in Scotland, but as a Specialist Reporting Agency can recommend criminal proceedings to the COPFS. Therefore the Commission has the power to carry out investigations in Scotland and where it does so it will investigate the matter in accordance with the requirements of the Scottish legal system and in accordance with the COPFS Guidance to Specialist Reporting Agencies. A case file and/or report will be prepared for submission to the COPFS, who will make the decision on whether or not to prosecute.
The Commission will work towards presenting the file and/or report to the Crown Office Procurator Fiscal Service within six months of the alleged offence or (offences).
The capacity to issue a formal caution for a criminal offence does not exist in Scotland. The COPFS has the power to issue warnings and impose financial penalties as a direct alternative to prosecution.
Proceeds of crime
The Commission is committed to a multi-agency approach to ensuring that crime does not pay.
The Commission is an accredited agency and has powers under the Proceeds of Crime Act 2002 (POCA) (opens in new tab)12. Where the Commission has secured a criminal conviction in respect of an offence under the Act, it will use its powers under POCA and will work with other agencies to take appropriate action to ensure that the proceeds of gambling crime are confiscated.
The Commission is already the supervisory body for the casino industry for the purposes of the money laundering regulations and uses its powers under the Act to exchange information on proceeds of crime issues with the National Crime Agency and other law enforcement partners involved in taking action under the POCA.
12 The Commission’s powers under POCA do not extend to Scotland.
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Last updated: 23 June 2022
Show updates to this content
Various updates have been made throughout this content following the now closed Consultation on changes and updates to our Licensing, Compliance, and Enforcement Policy.