DPP v Armstrong
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Hodson,Lord Guest,Lord Donovan,Lord Pearson |
| Judgment Date | 24 June 1965 |
| Judgment citation (vLex) | [1965] UKHL J0624-1 |
| Date | 24 June 1965 |
| Court | House of Lords |
[1965] UKHL J0624-1
House of Lords
Viscount Dilhorne
Lord Hodson
Lord Guest
Lord Donovan
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause Armstrong against Director of Public Prosecutions (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel, as well on Monday the 24th as on Tuesday the 25th, days of May last, upon the Petition and Appeal of Derek Killingworth Armstrong, of Hillcrest, Potterbank, in the County of Durham, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 3d of February 1965, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 3d day of February 1965, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House:
And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have read the Opinion of my noble and learned friend. Lord Pearson, and I agree with it.
My Lords,
I concur.
My Lords,
I concur.
My Lords,
I agree.
My Lords,
This is an appeal from a decision of a Divisional Court of the Queen's Bench Division who, on the hearing of a Case Stated, upheld the decision of Durham magistrates convicting the Appellant of offences under section 22 of the Betting and Lotteries Act, 1934, in connection with the promotion of a lottery known as "Postal Bingo Club". Admittedly there was a lottery involved, and the Appellant used premises in connection with the promotion of it, and published an advertisement of it, and had in his possession for the purpose of distribution tickets or chances in it. Prima facie a lottery is unlawful under section 21 of the Act of 1934, and the Appellant was prima facie guilty of the offences charged under section 22 of the Act of 1934. It is, however, contended on his behalf that he had on the facts of the case a good defence under section 21 subsection (1) of the Betting and Gaming Act, 1960. That subsection provides: —
"Nothing in section twenty-one of the Betting and Lotteries Act, 1934 (which declares all lotteries to be unlawful) shall make unlawful any gaming conducted in such circumstances that no offence under this Part of this Act is committed; and in any proceedings instituted under subsection (1) of section twenty-two of the said Act of 1934 (which relates to offences in connection with lotteries) it shall be a defence to prove that the lottery to which the proceedings relate was also a game of chance and that at the time of the alleged offence the person charged believed, and had reasonable ground for believing, that it was being conducted aforesaid."
Part II of the Act of 1960 consists of sections 15-22 inclusive, and is referred to as "this Part of this Act" in section 21 subsection (1). Offences are created by sections 16, 17 and 18. Section 28 contains definitions which apply throughout the Act and include the following:—
"'game of chance' includes a game of chance and skill combined and a pretended game of chance or of chance and skill combined, but does not include any athletic game or sport;
'gaming' means the playing of a game of chance for winnings in money or money's worth;
…….
'player', in relation to a game of chance, includes any person taking part in the game against whom other persons taking part in the game stake, play or bet;".
The Act does not contain any definition of the playing of a game, and contains only the partial definition, which I have set out, of a game of chance.
The magistrates and the Divisional Court have held that there was no "gaming", no playing of a game of chance, by the persons taking part in the lottery, and accordingly that the alleged defence under section 21 of the Act of 1960 was not established. After the decision on the Case Stated had been given in the Divisional Court, the Appellant's counsel applied for a certificate that a point of law of general public importance was involved in the decision, and after some discussion the certificate was given. There was apparently no formal certificate explicitly stating the point of law, which would have had the advantage of providing a clearly defined basis for an appeal. It can, however, be gathered from the discussion that the question of law involved is as to what element of participation is required to constitute "playing a game" within the meaning of the relevant definitions in section 28 of the Act of 1960. Leave to appeal was refused by the Divisional Court, but was granted by your Lordships' House.
The facts, as they appear from the Case Stated with its exhibited documents, have to be considered mainly in relation to that question.
The Appellant was the...
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