R v Burt & Adams Ltd
| Jurisdiction | England & Wales |
| Judge | LORD GOFF OF CHIEVELEY,LORD LLOYD OF BERWICK,LORD NOLAN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 02 April 1998 |
| Judgment citation (vLex) | [1998] UKHL J0402-3 |
| Date | 02 April 1998 |
| Court | House of Lords |
[1998] UKHL J0402-3
HOUSE OF LORDS
Lord Goff of Chieveley
Lord Lloyd of Berwick
Lord Nolan
Lord Hoffmann
Lord Hope of Craighead
(On Appeal from the Court of Appeal (Criminal Division)
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would dismiss the appeal and answer the question in the negative.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with his reasons, and conclusion, and gratefully adopt his description of the two types of amusement machine with which this case is concerned. For convenience I set out here section 34(3) of the Gaming Act 1968, so far as relevant:
"Except as provided by subsections (4) and (9) of this section, in respect of any one game played by means of the machine no player or person claiming under a player shall receive, or shall be entitled to receive, any article, benefit or advantage other than one (and only one) of the following, that is to say
(a)…
(b) a non-monetary prize or prizes of a value or aggregate value not exceeding £6 or a token exchangeable only for such a non-monetary prize or such non-monetary prizes;
(c) a money prize not exceeding £3 together with a non-monetary prize of a value which does not exceed £6 less the amount of the money prize, or a token exchangeable only for such a combination of a money prize and a non-money prize; …
In count 2 of the indictment the defendants were charged with contravening section 34(3)(b) on the ground that a successful player on the Crane and Grab machine was entitled to receive "an article benefit or advantage" in excess of what is permitted under the subsection, namely, "an article to be used as a token which could be exchanged with other such tokens for a non-monetary prize to a value in excess of £6." The article in question was a teddy bear worth £6 or less. At an early stage of the appeal Mr. Goldring Q.C., for the Crown, was asked what would be the position if the successful player, having won a brown teddy bear, was allowed to exchange it for another teddy bear of different colour but the same value. Mr. Goldring replied that in such a case the police would be unlikely to prosecute. One was glad to hear it.
By the end of the argument he had conceded, correctly in my view, that the right to exchange one teddy bear for another of the same value is not caught by the subsection at all. For the right to exchange one non-monetary prize for another non-monetary prize of the same value does not confer a "benefit or advantage" in excess of what is permitted under the subsection.
The sole question therefore is whether the right to exchange two small teddy bears worth £6 each for one large teddy bear worth £12 or (if the player was sufficiently persistent) 400 teddy bears for a battery operated car of equivalent value, contravenes the section.
In the judgment delivered by Kennedy L.J. which I for my part find entirely convincing, the Court of Appeal has held that this form of "trading up" (as it is called) is not unlawful. It is a practice which has prevailed for many years, apparently without objection. Parliament has had more than one opportunity to say in plain terms, if it had so wished, that the practice of trading up is unlawful. It is difficult to see why the practice should be regarded as contrary to the legislative policy underlying Part III of the Gaming Act 1968, since there is nothing to stop young people spending all day in the amusement arcade winning prizes of £3 on the Pusher machine and then spending the accumulated proceeds as they wish. For all these reasons it may be wondered why the Gaming Board should have seen fit to challenge the decision of the Court of Appeal before your Lordships. But since your Lordships are not of one mind, I add a short judgment of my own in support of the judgment below.
The prosecution case on count 2 depended on showing, as a first step, that the small teddy bear was either "a token" when it emerged from the Crane and Grab machine, or at least became a token or was used as a token when it was exchanged with other "tokens" for a larger teddy bear. If so, it was not exchangeable only for another small teddy bear, and the defendants would be in breach of section 34(3)(b).
It is important to notice that "token" is not defined in the Act. There is no deeming provision by virtue of which the word "token" is deemed to mean or include anything other than its ordinary meaning. Section 34(3)(b) itself distinguishes between non-monetary prizes, such as teddy bears, and tokens exchanged for non-monetary prizes. In other provisions of the Act it is clear that "token" is used in its ordinary sense. Thus section 26(1)(b) refers to "a slot or other aperture for the insertion of money or money's worth in the form of cash or tokens."
But it was argued that since teddy bears have a points value, and are exchangeable according to a fixed scale, they are tokens for the purposes of section 34(3)(b). I do not agree. Tokens are frequently exchangeable for goods. But it does not follow that all exchangeable goods are tokens. The man who is given a tie for Christmas, and is told that it can be exchanged at Harrods within 30 days, receives a tie and not a token.
Parliament could have provided that exchangeable articles, such as teddy bears, are to be deemed to be tokens for the purposes of the Act. But it has not done so. In my judgment "token" in section 34(3)(b) is used in its ordinary sense, and does not include an exchangeable teddy bear.
The only other provision relied on by Mr. Goldring was section 34(8) which defines a non-monetary prize as follows:
"In this section 'non-monetary prize' means a prize which does not consist of or include any money and does not consist of or include any token which can be exchanged for money or money's worth or used for playing a game by means of the machine …"
The argument, as I understood it, was that since the teddy bear could be exchanged for another teddy bear and since the second teddy bear would be worth something (with which I would agree) it must follow that the second teddy bear would be money's worth within the meaning of section 34(8) and therefore that the first teddy bear would be excluded from the definition of non-monetary prize. It must therefore be a token.
I would hesitate long before attaching criminal liability to such a convoluted argument. If Parliament had intended to prohibit the exchange of non-monetary prizes for other non-monetary prizes of the same value, by deeming such prizes to be "tokens," it would surely have said so in plain words. But in any event the argument leads nowhere. Section 34(8) is, as Mr. Beloff pointed out, an anti-avoidance provision. Its purpose is to inhibit circumvention of the £3 limit on cash prizes, by preventing non-monetary prizes being turned into cash or the equivalent of cash. There is nothing in the subsection which prohibits the exchange of one non-monetary prize for another non-monetary prize. Nor is there any reason why there should be. Indeed it would make nonsense of the definition if all non-monetary prizes were included in the meaning of money's worth; for the whole purpose of the definition is to distinguish between non-monetary prizes on the one hand and money and money's worth on the other. Money's worth in section 34(8) must therefore be given a narrow construction. It means the equivalent of money, as it does in section 26(1)(b). So far from lending support to the argument that exchangeable teddy bears are tokens for the purpose of section 34(3)(b) the definition in section 34(8) points in the other direction.
Since in my view exchangeable teddy bears are not tokens in themselves, nor used as tokens when exchanged for other teddy bears of the same value, the prosecution's argument on Count 2 never gets off the ground.
I turn to Count 3. It relates to the Pusher machine, and is said to be covered by section 34(3)(c).
The first question is whether the red and black plaques worth 20 and 100 points respectively are "tokens". Contrary to Mr. Beloff's submission, but in agreement with all your Lordships, it seems obvious that they are. The plaques have no intrinsic value. Mr. Beloff's submitted that they are non-monetary prizes. This is, with respect, almost as far-fetched as Mr. Goldring's submission that teddy bears are tokens.
Granted that plaques are tokens, the next step was for the prosecution to show that the right to accumulate plaques as tokens meant that the individual token was not exchangeable only for a prize or prizes worth £6 or less. In conjunction with other plaques it could be exchanged for a prize worth more than £6 depending on how many plaques the player had won.
The fallacy in this argument is that it ignores the language of section 34(3). The limit of £6 (or £3 cash) applies only "in respect of any one game." The right to obtain a bear worth £12 is not "a benefit or advantage" in respect of any one game, but a benefit or advantage in respect of not less than two games. There is nothing in section 34(3)(b) or elsewhere to prevent the accumulation of cash. Nor is there anything to prevent the accumulation of tokens. "Trading up" in tokens, whereby the player receives one larger prize instead of several smaller prizes of the same value is not unlawful. Nor is "trading up" in teddy bears.
It is said that this construction would allow wholesale evasion of the Act. While a single plaque might be advertised as being worth only £6, the rules might provide for two or more plaques together to be worth not...
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