R v Gaming Board for Great Britain, Ex parte Benaim and Khaida

A public body deciding whether to grant a statutory privilege must act fairly, even though its functions are administrative and the applicant has no existing right to the privilege. The content of natural justice depends on the subject matter and statutory context.

An applicant must know the substance of the matters causing concern and have a fair opportunity to answer them. The decision-maker may withhold confidential sources, and necessary details, where disclosure would endanger an informant or harm the public interest. A sufficient indication of the objections will ordinarily suffice. Unless the statute requires otherwise, fairness does not compel the decision-maker to give reasons for its ultimate assessment.

The applicants managed Crockfords gaming club and sought the Gaming Board's certificate of consent, without which they could not apply for a gaming licence under the Gaming Act 1968. The Board interviewed them for four hours about their associations, capacity to control the club, financial transactions, ownership arrangements and activities in Algeria. It invited further written representations but ultimately refused consent.

The applicants sought certiorari to quash the refusal and mandamus requiring fuller disclosure of the case against them. They argued that the Board had not identified which concerns remained unresolved and had therefore failed to observe natural justice. The central issue was what procedural fairness required of a statutory body assessing whether applicants were fit to receive a privilege involving commercial gaming.

1. The application was dismissed unanimously. Lord Denning MR delivered the judgment. Lord Wilberforce and Phillimore LJ agreed. The Board had acted with complete fairness, and its decision refusing consent disclosed no procedural defect.

2. The rules of natural justice applied to the Board. Their scope could not be fixed by rigid distinctions between judicial and administrative proceedings, or between existing rights and applications for licences. The required procedure depended on the statutory subject matter. Although the applicants sought a privilege rather than protection of an existing property right, the Board remained under a duty to act fairly.

3. Under paragraph 4(5) and (6) of Schedule 2 to the Gaming Act 1968, the Board had to assess capability and diligence by reference to matters including character, reputation and financial standing. Fairness therefore required it to give an applicant an opportunity to satisfy it on those matters and sufficient indication of its adverse impressions to permit an answer. It did not require disclosure with the particularity appropriate to a charge, dismissal from office or deprivation of property.

4. The Board could obtain information from the police and other reliable sources. It could withhold an informant's identity where disclosure would create danger or otherwise conflict with the public interest. It could also withhold details whose disclosure might reveal the source. Nevertheless, it ordinarily had to disclose the substance of the objections sufficiently to allow a meaningful response. The Board had done so and had afforded a full opportunity for oral and written representations.

5. The Board was not obliged to give reasons for refusing consent or to identify which of its stated concerns remained decisive. Its statutory task was to form an opinion about the applicants' likely capability and diligence. Having fairly disclosed the matters troubling it and heard the response, it was not required to submit its reasons to further challenge.

6. It was also fair to refuse a further or amended application concerning the same premises in the current round where the original application had failed on substance rather than through a technical defect. The application was dismissed with costs, and leave to appeal was refused.

• Court of Appeal: The applicants made an original application for certiorari to quash the Gaming Board's refusal of consent and for mandamus requiring fuller disclosure. The application was dismissed unanimously with costs, and leave to appeal was refused.