Download Change the Law Surrounding the Playing of Poker

The Law Reform Committee Essay Competition 2006
Word Count: 2,931
In the last few years the popularity of poker in England and Wales has
skyrocketed to unknown heights. This explosion has been largely fuelled by the new
playing possibilities that online gaming has allowed, however it is not only on the
internet that Poker’s popularity has boomed. People have also discovered the joys of
playing poker among friends at home, indeed poker chips have been one of the most
popular Christmas presents over the last few years. This new found enjoyment of ‘live’
poker has led many people to head to their local casino and play against new unknown
opponents in order to test their abilities. Under UK law they are totally entitled to do this,
however because not every town has a casino with a poker room or even a casino for that
matter, a number of specific poker clubs have been established across the country. These
clubs usually consist of a bar/restaurant area and a poker room. These places provide an
enjoyable setting for poker players to enjoy their pastime, and also provide a less
intimidating environment for novice players to learn the game in and socialise. However,
under current UK legislation these poker clubs are in danger of prosecution by the
Gambling Commission. 1 This is because poker is not allowed to be played on licensed
premises apart from in casinos, under the provisions stipulated by the Gaming Act 1968
sections 6/40/41. This forty year old legislation was designed to prevent poker games
from being used as an incentive to bait patrons into pubs. It was also created to safeguard
the public from exploitation at the hands of criminals, who may have attempted to cheat
people out of their money. Furthermore it was felt that poker games may lead to unrest
1
Statement form Phil Brear the Gambling Commission’s Director of Operations, ‘Poker in pubs and
similar arrangements offer none of these safeguards and we will work with the authorities to clamp down
on illegal games.’ 6/7/2006
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and potential violence and disorder if played on licensed premises.2 Whilst these
regulations may have been well intentioned and well thought out at their time of creation,
they now provide a potential barrier to people wanting to enjoy a popular pastime in an
official club. It seems hard to imagine that these regulations were made with poker clubs
in mind, and it therefore would seem sensible that new provisions should be created
which allow the playing of poker in specific, licensed and officially regulated poker
clubs. It seems ridiculous to allow the current state of affairs to continue, where a
significant number of people will be breaking the law without even knowing it.3
Having outlined briefly why I believe the laws surrounding the playing of poker
in clubs should be changed, it is now necessary to look in more depth at the laws which
govern poker. Whether or not a poker game is legal is still determined by legislation that
is close to forty years old.4 The Gaming Act 1968 reflects lawmaker’s fears that the
public may be enticed into pubs because of poker games or worse still cheated out of
their money in these games by the criminal fraternity. Whilst these laws may have been
necessary in a previous era, they now merely prohibit pubs organizing poker tournaments
or ladders that would carry about the same social threat as a quiz night. Furthermore this
antiquated legislation also casts doubt over the legality of poker clubs, venues which are
simply trying to operate businesses in an increasingly popular field.
Perhaps this highly restrictive legislation can be explained by the fact that poker
has always suffered from a bad image amongst law makers. Indeed it is often seen by the
uninitiated as a game of pure chance where people regularly run the risk of losing
2
Gambling Commissions’ guidance on gaming on Alcohol Licensed Premises Gaming Act 1968 Section 6
subsection 6,11,12 (July 2006)
3
Dave Woods, Editor in Chief of Poker Player magazine, Poker Player issue11, August 2006, p.5
4
Until the Gambling Act 2005 receives royal assent in September 2007, the Gaming Act 1968 will still
govern poker playing in the UK.
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everything they possess. However, this dark image is in fact an elaborate fallacy, created
by movies, television and the media in general, who seem determined to convince us that
we are a nation of gambling addicts.5 Poker is in fact a highly skilled decision based
game, more akin to bridge than equal chance games such as roulette or bingo.
Nevertheless unlike bridge, poker is often tarred with a hugely negative brush and
inaccurately linked to crime, problem gambling and massive risk taking. The fact that
poker has been a favoured past time of several US presidents and is now enjoyed by a
number of well respected celebrities from a host of different fields as well as a large
proportion of the general public still seems to be ignored.
This failure to accurately classify poker as a game is one of the main reasons that
the laws governing it are so outmoded and in need of reform. The Gambling Commission
seems to view poker as purely a game of equal chance and not the game of skill on a par
with bridge that it is. Indeed this misclassification is highlighted by some of the
Gambling Commissions public statements:
Back in the early 90s there was an upsurge in people wanting to play bingo. We gave
guidelines on playing bingo in pubs and similar premises and essentially we’re refreshing
these guidelines for poker.6
The ramifications of this statement are abundantly clear; the Gambling
Commission views poker as a similar game to bingo, and has decided to base its
refreshed poker regulations on those created for bingo. However, the crucial point here is
5
Hilary Stewart-Jones, Media Sport & Entertainment: Not so Vegas published in Legal Week 05/05/2005
to 12/05/05.
6
Dave Woods, Editor in Chief of Poker Player magazine, Poker Player issue11, August 2006, p.5,
editorial which contains this quote from the Gambling Commission.
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that Poker is not purely a game of chance. One could argue for a long time about the
degree of chance involved in poker, but it would be factually wrong to suggest that poker
is a game solely based on luck as is the case with bingo. It seems that because of the
gambling elements inherent within the game of poker and because of its image problem
that the Gambling Commission has fallen into the trap of completely misclassifying it as
a game. Hence to group poker and bingo together and to base guidelines for playing
poker on those created for bingo is inaccurate and is part of the reason why problems
with the legislation governing poker in the UK have emerged.
Another reason why it would seem sensible to reform the laws concerning poker
and specifically poker clubs is that these clubs do not appear to interfere with the
Gambling Commission’s regulatory objectives. According to the Gambling Commission
Chairman Peter Dean these three objectives are to keep crime out of gambling, to make
sure gambling is fair and open, and to protect children and vulnerable people from harm.7
These three regulatory objectives are obviously important, morally correct and well
thought out aims. However, it is difficult to see how poker clubs interfere with any of
these noble intentions. Firstly by allowing licensed poker clubs to exist the Gambling
Commission would be able to properly regulate and monitor these clubs and ensure that
they remained crime free. By outlawing them surely they are simply encouraging the
establishment of underground poker venues which will be much more likely to have a
criminal influence. Secondly by making poker clubs fully legal the Gambling
Commission would be able to ensure that poker games are kept fair and open by
monitoring clubs in the same manner as casinos. Also it is in the interests of poker clubs
7
Quote from a statement by Peter Dean the Gambling Commission chairman on 31/05/06 following the
publication of Licensing, Compliance and Enforcement by the Gambling Commission.
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to keep poker games fair and open as they will be trying to attract as many potential
clients as possible, like any other business. Additionally unlike a casino poker clubs
would generate their profit from the number of people who played in their games, rather
than the number of people who lost money. This is because any money that a player lost
in a poker game would go to another player rather than the club. The club would make its
money by taking a small percentage of each hand played in the club, or from each player
entering a tournament. Consequently there would be no reason for poker clubs to run
fixed or unfair games, as this would not benefit them in any way.
The final objective of the Gambling Commission, to protect children and
vulnerable people from harm is perhaps the most important. By legalising poker clubs the
Gambling Commission would be able to ensure that potentially vulnerable people would
be able to play poker in a safe environment. This freedom would also discourage people
from entering illegal or underground poker games which would carry a much greater risk
of corruption. With regards to children, poker clubs would operate like casinos and only
allow players over the age of 18 to enter, thereby protecting children from potential harm.
Hence in general it is hard to see how poker clubs would interfere with the Gambling
Commissions three regulatory objectives, and one must therefore wonder why they are
currently classified as being illegal.
The Gambling Act 2005 will not receive royal assent until September 2007,
however the Gambling Commission has published a document titled Licensing,
Compliance and Enforcement, which gives the gaming industry its first indications as to
how the Gambling Commission intends to use its new powers. Gambling operators will
be subject to a number of checks, as will shareholders and major investors. These checks
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will comprise of criminal record checks, integrity checks and financial checks such as
insolvency and company house records. Any gambling operator will be refused a licence
until these checks are made and satisfied, and this system will attempt to ensure that
crime is kept out of the gambling industry. Commission staff will also visit casinos, bingo
clubs, betting shops and amusement arcades as well as checking online gambling sites on
a regular basis.8 This tough proposed approach to the gaming would seem to ensure that
the Commissions objectives will be met. Accordingly with regard to poker clubs, it seems
a simple enough reform to merely add them to the list of operators and thereby expose
them to the same range of checks. Indeed I’m sure this would be welcomed by the
operators of poker clubs, who simply want to run their businesses legally.
Having analysed the current laws surrounding poker under the Gaming Act 1968
and the possible ramifications of the Gambling Act 2005, it is also necessary to consider
why the Gambling Commission oppose the legalisation of poker clubs so strongly. The
frequent misclassification of poker as a game of luck rather than a game of skill has
already been discussed, but it is worth remembering that this is one of the main reasons
behind the Gambling Commission’s reluctance to legalise poker clubs. Another factor in
the Commission’s aversion to poker clubs is their belief that a lack of regulation in these
venues could cause people to be cheated or exploited:
Poker is a great game, but properly regulated operators such as casinos employed trained
and licensed staff as dealers and supervisors, they use CCTV to monitor play, they offer
8
Taken from Gambling Commission’s consultation document Licensing, Compliance and Enforcement
published on 31/05/06.
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protection to players, and they are closely monitored and supervised by the Gambling
Commission. Poker in pubs and similar arrangements offer none of these safeguards.9
Again whilst the Gambling Commission intentions appear noble and well
meaning they also appear overly prohibitive. Obviously it is important for poker clubs to
be well run and supervised. However, this does not appear to be an insurmountable
problem. The majority of poker clubs already employ trained staff as dealers, and it
would not take much to bring them up to casino standard. Additionally casino style
security measures could easily be implemented within poker clubs with no great
difficulty. In so far as the Gambling Commission wanting to properly regulate and
monitor poker clubs all that would be needed for this to happen would be for the
commission to include poker clubs as a separate category amongst the operators applying
for licences under the Gambling Act 2005.
Online gaming has not been touched upon in this essay so far, but it is necessary
to consider online poker for one crucial reason. As the law currently stands in the UK one
cannot enter a poker club without breaking the law. However, one is totally at liberty to
access an online poker site and play as much as one wishes. This state of affairs is
obviously highly contradictory, because essentially the exact same game is legal in one
venue and illegal in another. This contradiction is made even more noteworthy because of
the oft cited argument that online poker may lead to or encourage problem gambling.10
The issue of whether online poker is a danger for problem or compulsive gamblers is a
highly debatable one. However, if one for argument’s sake says that it is, then online
9
Statement from Phil Brear the Gambling Commission’s Director of Operations, 06/07/2006.
Jason Chess, Media, Sport & Entertainment: A bit of what you fancy, published in Legal Week
05/05/2005 to 12/05/2005.
10
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poker would provide a much greater danger than poker clubs. This is because online
poker games happen a lot faster than ‘live’ games and facilitate a much greater number of
hands to be played in the same amount of time. Therefore if online poker is proved to be
a significant danger to problem gamblers (I don’t think it will be) then why is it classified
as being fully legal when it poses a much greater risk than poker clubs? Moreover online
poker can also be accessed 24/7 which obviously makes it much more of a danger to
problem gamblers than poker clubs which would operate under controlled hours, and also
would not be so instantly accessible to problem gamblers. Essentially it seems reasonable
and fair for both online poker and poker clubs to be totally lawful, however, if one were
to be made illegal due to the risk of problem gambling or underage gambling then it
would it seem that it should be online poker and not in fact poker clubs.
Having outlined the laws surrounding poker clubs and possible reform options, it
is also necessary to consider whether such reform would be desirable, practical and
useful. Firstly it is never a good thing to have a significant proportion of the public
breaking the law without being aware of it, and this is what is currently happening due to
the ambiguous legal status of poker clubs.11 It would surely be desirable for this
confusion surrounding poker legislation to be resolved. Furthermore with poker
becoming an increasingly popular pastime, poker clubs will be increasingly wanted by
the general public, who will most likely enjoy the more relaxed atmosphere provided and
the lack of casino gaming temptations. With regards to the ethics of poker, that is
obviously a question of opinion. People are entitled to their viewpoint, but whilst
gambling in casinos and online gambling are completely legal in Britain, it would seem
11
Dave Woods, Editor in Chief of Poker Player magazine, Poker Player issue11, August 2006, p.5
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highly contradictory to outlaw poker clubs. Additionally poker’s image is gradually
improving, with people’s realisation that it is a highly skilled game much closer in to
bridge or chess in its skills than games of chance such as roulette, blackjack or bingo.
Therefore it is hard to find any worthwhile reason as to why poker clubs should not be
fully legalised.
The issue of the practicality of any reform has already been touched upon, but to
reiterate, surely poker clubs could simply be reclassified as legal gaming venues. With
the Gambling Act 2005 soon to come into being it seems a simple modification to
incorporate poker clubs into the list of gambling operators who will be subject to the
Gambling Commission’s series of checks and continual regulation and monitoring. This
reform would appear to allow the Gambling Commission to uphold its important
regulatory objectives whilst allowing poker players and operators to exist legally.
In terms of utility, reforming the law to legalise poker clubs would firstly allow
the general public to enjoy an increasingly popular pastime in a safe and well regulated
environment. It would also allow gaming operators to run poker clubs without the fear of
prosecution, therefore helping to remove the possibility of criminal involvement.
Additionally, poker clubs would also help boost local economies in much the same way
that casinos do. Finally legalising poker clubs would streamline the law regarding the
playing of poker in this country, making both online and ‘live’ poker fully legal and
therefore removing any ambiguity or confusion in the current law. Therefore I feel that it
would be a positive reform to change the law surrounding poker clubs, and make them
fully legal,
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Whether you like it or loathe it there is a strong instinct for gambling and betting and the
firm conviction among lawyers in this field is that it is far better that it should be
established legally, regulated properly and taxed effectively rather than fall into the hands
of professional criminals.12
12
Edward Fennell, The Times Law Supplement, 10/10/2006, p.9
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