News of the World Ltd v Friend
| Jurisdiction | England & Wales |
| Judge | Lord Chancellor:,Lord Reid,Lord Morris of Borth-y-Gest,Lord Simon of Glaisdale,Lord Cross of Chelsea |
| Judgment Date | 31 January 1973 |
| Judgment citation (vLex) | [1973] UKHL J0131-2 |
| Date | 31 January 1973 |
| Court | House of Lords |
[1973] UKHL J0131-2
House of Lords
Lord Hailsham of Saint Marylebone, L.C.
Lord Reid
Lord Morris of Borth-y-Gest
Lord Simon of Glaisdale
Lord Cross of Chelsea
Upon Report from the Appellate Committee, to whom was referred the Cause The News of the World Limited against Friend (on Appeal from a Divisional Court of the Queen's Bench Division), That the Committee had heard Counsel as well on Wednesday the 29th, as on Thursday the 30th, days of November last, upon the Petition and Appeal of The News of The World Limited, whose registered office is situate at 30 Bouverie Street, London, E.C.4, 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 11th of February 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or 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 Ronald Friend, the Respondent to 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 11th day of February 1972, complained of in the said Appeal, be, and the same is hereby. Reversed, and that the Convictions imposed by Sir James Miller and Margaret Edna Pearce-Higgins. two of Her Majesty's Justices of the Peace for the City of London acting as a Magistrates Court sitting at the Mansion House Justice Room on the 21st day of September 1971 be, and the same are hereby, Quashed: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Magistrates Court for the City of London holden at the Mansion House, to do therein as shall be just and consistent with this Judgment.
In my opinion this appeal must be allowed, and I agree so entirely with the opinions to be expressed by my noble and learned friends, Lord Reid, Lord Morris of Borth-y-Gest and Lord Cross that I would not have added a separate opinion of my own were it not for the fact that we are differing not merely from the Divisional Court and, regretfully, with my noble and learned friend. Lord Simon of Glaisdale in the instant case, but with the reported judgment of Lord Parker C.J. and of Ashworth J. inLadbrokes (Football) Ltd. and Others v. Perrett [1971] 1 W.L.R. 110 on which the judgment of the Divisional Court in the present case was largely founded.
The proceedings originated in a Case Stated by the Guildhall Magistrates after the conviction of the Appellants on two summonses under s. 47(1)(a)(i) of the Betting, Gaming and Lotteries Act, 1963. This section reproduces with only unimportant changes the wording of s. 26(1) of the Betting and Lotteries Act, 1934. S. 47 of the Betting, Gaming and Lotteries Act, 1963, provides as follows:—
"47. RESTRICTION OF CERTAIN PRIZE COMPETITIONS.
(1) It shall be unlawful to conduct in or through any newspaper, or in connection with any trade or business or the sale of any article the public—
(a) any competition in which prizes are offered for forecasts of the result either—
(i) of a future event; or
(ii) of a past event the result of which is not yet ascertained or not yet generally known;
(b) any other competition success in which does not depend to a substantial degree upon the exercise of skill:
Provided that nothing in this subsection with respect to the conducting of competitions in connection with a trade or business shall apply in relation to sponsored pool betting or in relation to pool betting operations carried on by a person whose only trade or business is that of a bookmaker.
(2) Any person who contravenes the provisions of this section shall, without prejudice to any liability to be proceeded against under section 42 of this Act, be guilty of an offence."
No summonses were issued by the prosecution against the Appellants in respect of any offence alleged to have been committed under s. 47(1)(b) of the Act.
The two summonses issued related to two "Spot the Ball" competitions conducted in the Appellants' newspaper respectively on 29th November, 1970, and 4th April, 1971.
Before I come to describe the actual competitions which gave rise to the present proceedings I think it will be helpful to describe the legal context in which the present provisions first came to be enacted in 1934.
Newspapers and other commercially organised competitions in promotion of sales or to create "brand loyalty" have been the subject of controversy both in the Courts and outside at least since 1892 when the first newspaper competition appears to have been organised. By 1934, the position which had been arrived at by the Courts was, broadly speaking, as follows. Apart from any danger they might incur from the then current laws against cash and other betting (irrelevant for this purpose) the only danger of prosecutionthe organisers of such a competition really ran was that it might be held a lottery, which was then, as (apart from irrelevant exceptions) it is now, illegal. But a lottery being a distribution of prizes by lot or chance, it came to be held that, even if a quite modest degree of skill entered into the decisive test, the competition escaped. Thus, even competitions in which prizes were offered for forecasting the results of future events, e.g., a horserace, could escape (Caminada v. Hulton (1891) 64 L.T. 572, Stoddart v. Sagar [1895] 2 Q.B. 474), and so could the forecast of the result of an event contemporary or already in the past, but whose result was not known (e.g. the number of births and deaths in London in a given week; c.f. Hall v. Cox [1899] 1 Q.B. 198 [1899] 1 Q.B. 198 C.A.). On the other hand, competitions, the final result of which was determined by chance were lotteries and, therefore, illegal, even though a degree of skill was required to winnow out all but the final competitors. Thus, a competition to determine the order of merit of the roles of Ellen Terry, to be decided by the vote of the competitors themselves, was a lottery (see Challis v. Warrender (1931) 144 L.T. 437) and so was a competition, similarly decided, in which the prizes were offered for the correct order of merit of 13 named commodities (see Hobbs v. Ward 45 T.L.R. 373). The same rule caught the missing word competition in Barclay v. Pearson [1893] 2 Ch. 154, and the crossword competition where several of the clues admitted of alternative solutions (Coles v. Odhams Press Ltd. [1936] 1 K.B. 416 decided after the Act of 1934 though on the old precedents). But if even a small degree of skill entered into the result the competition survived (see, for instance, Scott v. D.P.P. [1914] 2 K.B. 868 [1914] 2 K.B. 868 D.C.). A fortiori, where the degree of skill was substantial, e.g., a literary competition in a serious weekly, or a bridge or chess problem, it was never in question but that such competitions were permitted. In one case not wholly dissimilar from the present Eve J. seems to have held that a puzzle picture came into this category (see Witty v. World Service Ltd. [1936] Ch. 303 decided under the second limb of the section of the Act of 1934).
In these circumstances, Parliament passed the Act of 1934, folowing a Royal Commission in 1932. Incidentally, it is a salutary (and I hope cautionary) reflection for those who are eager to use Commission Reports as a means of construing Acts of Parliament, to note that, although the Act of 1934 followed the Royal Commission in time, it by no means enacted all the recommendations of the Commission, but departed from them in important respects.
S. 26 of the Act of 1934 was contained in Part II of the Act which is headed "Lotteries and Prize Competitions". The scheme adopted by the Act was to continue to regard as illegal all lotteries with certain exemptions irrelevant for the present purpose (s. 21 et seq) but to legislate specially for newspaper and commercially organised prize competitions (s. 26). It made no attempt to redefine the word "lottery" so as to bring within the definition competitions in which skill and chance are intermixed.
The remainder of the field of commercially organised prize competitions as defined was divided into two classes viz:—
(1) Competitions in which prizes are offered for forecasts of the result of a future event, or of a past event, the result of which is not yet ascertained, or not yet generally known. These were prohibited absolutely (s. 26(1)(a)) however much, or however little, the skill involved and, it would seem, in theory at least, whether or not they were already illegal as lotteries;
(2) Any other competition. These were prohibited if success in them "does not depend to a substantial degree on the exercise of skill".
Commercially organised competitions as defined in the opening words of the section can, therefore, be categorised in four classes, the last three of which at least and in practice probably all four, are mutually exclusive. These are:—
(1) Lotteries: these are illegal under ss. 21 and 22 as they always were;
(2) Forecasts of the results of future events or of events the result of which...
To continue reading
Request your trial
- Public Prosecutor v Yap Kian Nam
-
IFX Investment Company Ltd and Others v Revenue and Customs Commissioners
...that there was clearly no national game. 10 At paragraph 97 of their decision, the FTT adopted the dictum of Lord Hailsham in News of the World Ltd v Friend [1973] 1 WLR 248, 254D that "in these cases the court will look at the realities of the offer and the competition and will not allow i......
-
Imperial Tobacco Ltd v Attorney General
...and Scott v. The Director of Public Prosecutions (1914-) 2KB, p. 868) -see Lord Hails ham and Lord Simon of Glaisdale in News of the World v. Friend (1973) 1, AER, p. 423 at pp 4- 24426 and 434-. The present scheme involves no skill, and no case was cited to us in which a scheme involving n......
-
The"Spotting the Ball" Partnership & Others v The Commissioners for Her Majesty's Revenue & Customs, TC 02624
...by the House of Lords by a four to one majority in the second case the parties referred us to, News of the World Limited v Friend [1973] WLR 248. 15 94. Friend was concerned with the same variant of STB as the present appeal. In Friend, the prosecuting authorities had only prosecuted under ......