Jacpot: a licence decision is reviewable

The file

Jacpot Ltd held a Gaming House “A” licence and gaming-machine licences for premises at Rose Belle. The Gambling Regulatory Authority suspended them and then revoked them. One ground was late audited accounts, later said to have been repaired. The decisive ground in the courts’ treatment was section 99(1)(k) of the Gambling Regulatory Authority Act 2007: the premises had ceased, in the opinion of the Commissioner of Police, to be suitable. The Commissioner had reported larceny, assault and disturbance connected with the operation.

Jacpot applied to the Supreme Court for judicial review. The Court dismissed the application on 27 July 2016. It refused leave to appeal to the Privy Council. The Board heard the leave application orally, with the appeal to follow if leave were granted, and refused leave on 12 July 2018. Lord Sumption gave the reasons. [2018] UKPC 16.

Read the regulator’s name before anything else. This is the Gambling Regulatory Authority. It is not the Financial Services Commission, and it is not a code in the FSC directory. The case is on this course for one teaching point: a decision to take a licence away can be judicially reviewed. The Board’s refusal of a further appeal is not a ruling that review was unavailable.

Issues the court decided

The Board decided whether Jacpot had an appeal as of right under section 81 of the Constitution. That turned on whether the proceedings were civil, whether the Supreme Court’s order was final, and whether the value threshold was met. The Board decided that the proceedings were civil and the order was final, and that the value threshold was not met because the licences were not property and Jacpot’s relevant right could not be valued in money.

It then decided whether to grant special leave. It refused. On the substance, briefly, because leave was argued orally, it said section 99(1)(k) leaves suitability to the Commissioner’s opinion. The Authority’s discretion is how to respond to that opinion. Jacpot’s attack on whether the opinion was justified was not an attack the Authority could accept as a substitute opinion of its own.

The holding in the court’s words

“Their gaming licences were not property in any relevant sense, but simply an authority to provide facilities for gaming, which would otherwise have been unlawful. Nor did they have any civil right to receive or retain a gaming licence. Their only relevant right was the right to a fair and lawful decision of the Authority. That right, important as it is, is a public law right which is no different in kind from the right which any person with a relevant interest has to see the law applied. It is incapable of valuation in monetary terms. It follows that the present appeal does not pass the value threshold and is not therefore available as of right.”

“The Board considers it to be clear that this provision confers a power on the Authority which is discretionary in the sense that they may respond to the opinion of the Commissioner by refusing to renew a licence or by suspending it for a period determined by them, or by revoking or cancelling it or by deciding in the circumstances of the case to do none of these things. … But in applying sub-paragraph (k) the Authority is not empowered to decide for itself whether the premises are suitable, because under that sub-paragraph the relevant opinion is the Commissioner’s and not theirs.”

“For these reasons, leave to appeal will be refused.”

The Board added that an opinion which did not address suitability, or which was formed in bad faith, could be ignored or challenged. No such allegation was made. The Commissioner’s opinion was itself open to judicial review. Jacpot had not brought that application against the Commissioner.

What the court did not decide

The Board did not rehear the suitability of Rose Belle. It did not decide that licence decisions are immune from judicial review. The Supreme Court had already conducted a review and upheld the revocation. The Board refused a further appeal. It did not decide any FSC licensing test, any Bank of Mauritius permission, or the fit-and-proper standard in a financial-services statute. Section 99(1)(j), the fit-and-proper ground, is quoted in the Act in the judgment and was not the ground the Board treated as decisive.

It also did not say that a licence can never be property for every legal purpose. It said that for the value threshold on an appeal as of right, these gaming licences were an authority to do something otherwise unlawful, not property, and that the right in play was the right to a lawful decision.

The trap

The trap is to file this case under an FSC code because the word “licence” appears. The trap in the other direction is to read “leave refused” as “you cannot review a revocation.” Jacpot reviewed it. The review failed in the Supreme Court, and the further appeal was not available as of right and was not granted as a matter of discretion.

A promoter who has lost a permission still has to identify the decision, the statute, and the court that can review it. This judgment is a worked example of that identification in gambling regulation. Rainbow, on this course, is the FSC example of what review is for. Emtel is the example of reading the licence paper itself. Jacpot is the example of a licence decision that was reviewed, and of an appeal that then stopped.

The judgment

[2018] UKPC 16, Privy Council Appeal No 0032 of 2017, given on 12 July 2018. The PDF is the source. Quotes on this page are from that judgment.