Seay v Eastwood and Another

[1976] 3 ALLER 153

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(Judgment by: Lord Wilberforce)

Seay
vEastwood and Another

Court:

Judges:
Lord WilberforceLord Simon of Glaisdale
Lord Kilbrandon
Lord Salmon
Lord Russell of Killowen

Legislative References:
Betting Act 1853 - s 1
Gaming Houses Act 1854 - The Act
Betting and Lotteries (Northern Ireland) Act 1957 - The Act

Case References:
Peers v Caldwell - [1916] 1 KB 371; [1914-15] All ER Rep 497

Hearing date: 5, 6 July 1976
Judgment date: 28 July 1976

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Judgment by:
Lord Wilberforce

My Lords, the first appellant is a licensed bookmaker carrying on business as such at a licensed office in Belfast; the second appellant manages the business. They installed two fruit machines in the premises for use by their customers. The question is whether in so doing they are carrying on in the premises 'any trade, profession or business whatsoever except the business of bookmaking'. To do so is made an offence by the Betting and Lotteries Act (Northern Ireland) 1957, s 13(1)(a). They were convicted by the Recorder of Belfast and the conviction was upheld by the Court of Appeal in Northern Ireland.

The validity of the conviction depends on what is included in the 'business of bookmaking'. In s 20 of the 1957 Act we find the following:

'... "bookmaker" means any person who whether on his own account or as servant or agent of any other person, carries on, whether occasionally or regularly, the business of receiving or negotiating bets, or who in any manner holds himself out, or permits himself to be held out in any manner, as a person carrying on such business and the expression "bookmaking" shall be construed accordingly ... '

There follow certain exclusions relating to pool betting and totalisators. The appellants contend that the operation of the machines is part of their business of bookmaking, a proposition which appears implausible unless this result is produced by statutory enactment.

My Lords, before one attempts to apply the so-called definition, it is necessary to establish the climate or atmosphere in which it has been given birth.

Legislation against, or controlling, gaming, wagering and betting is many centuries old in the United Kingdom. With only moderate success Parliament has endeavoured to keep up with the enormous variety of these activities which has arisen from the ingenuity of gamblers and of people who exploit them. It is impossible to frame accurate definitions which can cover every such variety; attempts to do so may indeed be counter-productive, since each added precision merely provides an incentive to devise a variant which eludes it. So the legislation contains a number of expressions which are not, or not precisely, defined: bet, wager, lottery, gaming, are examples of this. As to these, while sections appear in various Acts saying that a particular activity is, or is deemed to be, within the word, the general meaning is left to be decided by the courts as cases arise under the common law. The process, and I think it a very sound one, is then for magistrates, using their local knowledge, experience of the world and common sense, to give a sensible interpretation of the expressions used, subject to control of their decision by a court itself experienced in deciding this type of question. When, as should rarely occur, higher appellate courts are required to review these cases, they should, in my opinion, endorse decisions which they can see have been reached and confirmed in this way. Refined analytical tools are not suitable instruments in this context.

The definition contained in s 20 of the 1957 Act, on the face of it, calls for just such common sense interpretation as I have described. A bookmaker, it says, is a person who makes or negotiates bets--but what in this context are bets? Are they what a man places with a bookmaker or something else? If the former, the definition may be circular, but at least it conforms with popular belief. If the latter, the definition may have more content, but its scope is completely uncertain. I shall revert to this point. In the search for a common sense meaning, I look first at the recorder's decision, embodied in the case stated. He describes in some detail the operation of the machines. He points out that a player may win or lose on any single play; that there are odds, according to which the machine is supposed to produce one combination or another, no doubt very unfavourable to the player; that over a period the machine yields a steady profit of about 27 per cent, the amount of which can be adjusted. There is no finding or suggestion that the owner of the machine is responsible for paying the player if the machine does not do so. On these facts the learned recorder held that by natural interpretation of the statutory words the operation of the machine could not be a bookmaking transaction. He had no doubt that the proprietor could not properly be described as making a book, and even if a user could be described as making a bet when he put his coin into the machine, he could not be said to be making it with a bookmaker.

My Lords, I doubt very much whether, as to this type of legislation, one can carry the argument much further than this. It is possible to take various elements supposed to be essential to a 'bet'--an uncertain event, the possibility of loss, the holding of opposite views, an interest in winning or losing--and debate whether all or some of these are present. If I were to follow this process, I would say, for myself, that an essential element necessary for a bet is missing because the player plays against or with the machine, ie the stakes provided by other players. The owner does not stake anything; he may provide some initial capital, but he knows, and the player knows, that the owner will get this back plus a fixed profit. The player merely takes his chance of sharing in the 73 per cent of the stakes put into the machine. But in the end, the determination is a magistrate's decision, to be upheld unless he has misapplied his mind to the question. So far as I am capable of placing myself in his chair, I would reach the conclusion that the appellants in installing the machines were not conducting a bookmaking business, that the players were not placing bets, at least not the sort of bets one places with a bookmaker.

There are just three points which an appellate court may properly have regard to in reviewing his decision. First, I think it is correct to say that, in general, gaming machines have been treated in law as a separate subject from betting. I do not,

for this proposition, rely on later legislation whether in Northern Ireland or in Great Britain because I doubt whether this can be looked at in order to interpret the 1957 Act. The distinction is clearly made in Peers v Caldwell and cases which have followed it. All three of the judges in that case seem to have considered that the operation of a gaming machine was not betting in the ordinary sense of the term and the decision was that it came under the second portion of s 1 of the Betting Act 1853--which omits the word 'bet'--rather than under the first portion which includes it. It may be like betting, but not betting properly so called.

Secondly, it is to be noted that the 1957 Act does not deal with gaming machines at all, leaving them under the Gaming Houses Act 1854. (Later Acts in Northern Ireland provide for licensing gaming machines and those with which this case is concerned are in fact so licensed.) But if the appellants' argument is right as to the meaning of the definition all operators of gaming machines whether in arcades or elsewhere have to be regarded as bookmakers and are liable to obtain a bookmaker's licence. An interpretation which avoids this and which conforms with ordinary understanding appears to me to be preferred.

Thirdly, as I have noted, the definition of 'bookmaking' in s 20 excludes certain kindred activities which might well be considered to be 'betting'--pool betting and totalisator betting. This seems to show that the intention was to confine the business of 'bookmaking' within narrow limits, and to prohibit the carrying on in licensed premises of anything outside this narrow range. This, whether sound social policy or not, is at least intelligible and capable of being administered.

I would dismiss the appeal.