Fox v Adamson
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Hodson,Lord Guest,Lord Devlin,Lord Upjohn |
| Judgment Date | 09 May 1968 |
| Judgment citation (vLex) | [1968] UKHL J0509-1 |
| Court | House of Lords |
| Date | 09 May 1968 |
[1968] UKHL J0509-1
House of Lords
Viscount Dilhorne
Lord Hodson
Lord Guest
Lord Devlin
Lord Upjohn
Upon Report from the Appellate Committee, to whom was referred the Cause Fox and others against Adamson (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel on Wednesday the 27th day of March last, upon the Petition and Appeal of Colin Edward Fox, of 55 Park Lane, London, W.1, Sandra Madeline Gillett, of 55 Park Lane, London, W.1, Leslie Gillett, of Tyningham, Lothians Road, Tottenhall, Wolverhampton and of Kent and Thanet Casinos Limited, whose registered office is at 185 Great Portland Street, London, W.1, 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 25th of October 1967, 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 Petitioners 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 Louis Joseph Adamson, 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 25th day of October 1967, 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 Appellants 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,
The Appellants, Kent and Thanet Casinos Ltd. were in 1966 the owners and occupiers of 18, Station Road, London, N.22, and there managed a club called the Legalite Casino Club. The Appellant, Leslie Gillett, was a director and the chairman of Kent and Thanet Casinos Ltd. The Appellant, Sandra Gillett, was also a director of that company and she had been nominated to hold the justices' licence and the excise licence for the club premises. The Appellant, Fox, was a manager employed by Kent and Thanet Casinos, Limited and was responsible for running the club.
On the 26th August, 1964, Kent and Thanet Casinos, Limited applied to the Wood Green Borough Council for a permit under section 49 and the Sixth Schedule of the Betting, Gaming and Lotteries Act, 1963 (hereafter referred to as "the Act") for the provision at the club of amusements with prizes. On the 26th October, 1964, they were given a permit to do so for the period ending on the 30th September, 1967.
On the 24th June, 1966, informations were laid charging the Appellants with breaches of section 49 of the 1963 Act by providing at the club on the 9th and 10th March, the 29th April and the 3rd and 4th May, 1966, amusements with prizes at which money prizes in excess of one shilling were offered. The Appellants were convicted. They appealed to the Divisional Court. Their appeal was dismissed but that Court, while refusing leave to appeal, certified that there was a point of law of general public importance. They now appeal with the leave of this House.
Section 49 of the 1963 Act, so far as material, reads as follows: —
"Section 49 (1). The provisions of this section shall have effect for the purpose of permitting the provision of amusements with prizes—
( a) on any premises in respect of which a permit for the provision thereon of such amusements has been granted by the local authority, and is for the time being in force, under Schedule 6 to this Act: and
( b) ….
(2) Nothing in section 32, 33, 34, 41 or 42 of this Act shall apply in relation to amusements with prizes provided on such premises as are mentioned in subsection (1) ( a) or … but, in relation to any such amusement to which any of those sections would apply but for this subsection, the conditions set out in subsection (3) of this section shall be observed, and if any of those conditions is contravened every person concerned in the provision or conduct of that amusement shall be guilty of an offence unless he proves that the contravention occurred without his consent or connivance and that he exercised all due diligence to prevent it.
(3) The conditions referred to in the last foregoing subsection are
( a) ….
( b) ….
( c) that no money prize is distributed or offered which exceeds one shilling:
( d) ….
( e) …."
The Justices found as a fact that on the dates in question Bingo was played at the club "at which the prizes ranged from £5 to £18" and also French Boule, a game, they said, resembling roulette, at which "the prizes were at times about 10 shillings or £1". They also found that there were on the club premises two fruit machines "on which the prizes ranged up to 9 shillings and on which there was also a jackpot prize of a sum possibly of about £4"; and six "Gold Award" machines on which the maximum prize in money was one shilling. The fruit machines and the "Gold Award" machines were gaming machines within the definition in section 33(3)( a) of the Act.
The Justices assumed and the Case Stated says that it was conceded by the Respondent that the playing of the Bingo and French Boule complied with section 32 of the Act and that the fruit machines complied with section 33. They held, however, that the Bingo, the French Boule and the two fuit machines were amusements with prizes within the meaning of section 49 and that all the conditions prescribed by section 49(3) were not complied with.
The first point certified by the Divisional Court as a point of law of general public importance was whether "the games of Bingo, French Boule and the two fruit machines… were amusements with prizes within the meaning of section 49" of the Act.
The words "amusements with prizes" are not defined in section 49 or elsewhere in the Act. In my opinion, they must be given their ordinary natural meaning. Whether the playing of a particular game or the use of a particular machine is or is not an amusement with a prize is a question of fact. There is nothing in the Case Stated to indicate that the Justices did not give the ordinary and natural meaning to these words. Mr. Buzzard, for the Respondent, during the argument in this House was prepared to concede that the game of French Boule was not an amusement with a prize as the playing of the game did not result in the winning of a prize. However this may be, the Justices found that on the dates in question it was played for a prize, and one must proceed upon that basis.
The second point certified by the Divisional Court was "Whether the effect of section 49 (2) of the" … "Act was to establish a separate code in respect of the provision of amusements with prizes including games and gaming machines on premises in respect to which a permit under the Sixth Schedule to the said Act had been granted and was for the time being in force, or whether on its true construction the said sub- section did not in any way affect gaming or gaming machines on such premises which was or were being conducted or used lawfully in compliance with sections 32 and 33 of the said Act."
Section 49(2) begins with the words "Nothing in sections 32, 33, 34, 41 or 42 of this Act shall apply in relation to amusements with prizes provided on" premises in relation to which such a permit has been granted and was in force.
Section 32 provides that gaming shall be lawful if, but only if, it is conducted in accordance with the conditions prescribed in the section. Section 33 provides that section 32 shall not apply to gaming machines. It distinguishes between the use of those machines on premises to which the public have access or which are used wholly and mainly by persons under eighteen and use on other premises. Use of the machines on those other premises must comply with the conditions laid down in section 33(2).
Section 41 provides that subject to the provisions of the Act all lotteries are unlawful; and section 42 makes participation in the running of a lottery an offence. It also provides that it shall be a defence to proceedings under that section to prove that the lottery was one declared not to be unlawful by sections 43, 44, 45 and 46 of the Act and that the person charged believed and had reasonable cause for believing that none of the conditions required to be observed in respect of those lotteries had been broken.
If the provision of an amusement with a prize could not involve gaming, the use of gaming machines or a lottery, this part of section 49 would serve no useful purpose. The statute recognises that an amusement with a prize may do so by the insertion of these words in section 49.
If there are amusements with prizes which involve gaming the use of gaming machines or a lottery and which are provided on premises in respect of which such a permit is in force, there can be no prosecution for an offence under the gaming sections or in respect of the running of a lottery.
In the Legalite Casino Club there were no less than eight gaming machines. It is a breach of a condition imposed by section 33(2) to have more than two available for play in any one building such as a club but if the provision of those gaming machines amounted to the provision of amusements with prizes, as the justices found, then there could be no prosecution for an offence under section 33.
The exclusion of the operation of sections 32, 33, 34, 41 and 42 only applies in...
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