R v Commissioner of Police of the Metropolis, ex parte Blackburn

CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS, LORD JUSTICE EDMUND DAVIES
Judgment Date29 Jan 1968
JurisdictionEngland & Wales
Neutral Citation[1968] EWCA Civ J0129-3

[1968] EWCA Civ J0129-3

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From the Divisional Court Queen's Bench Division

Before

The Master of the Rolls (Lord Denning)

Lord Justice Salmon and

Lord Justice Edmund Davies

The Queen
and
Commissioner of the Metropolitan Police
Ex Parte Blackburn

THE APPELLANT (Mr Raymond Blackburn) appeared in person.

MR MICHAEL WORSLEY (instructed by the Solicitor, Metropolitan police) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

Mr Blackburn moves for a mandamus against the Commissioner of Police for the Metropolis. He says that it was the Commissioner's duty to enforce the law against gaming houses: and he has not done it. He seeks an order to compel the Commissioner to do it. This motion, thus made, raises questions of constitutional significance. I will deal with them separately.

2

1. The Law as to Gaming-houses.

3

The common law of England has always condemned gaming houses. This is not because gambling is wicked in itself, but because of the evils attendant on it. Hawkins in his Pleas of the Crown says (Book I, C. 75, S.6) that: "All common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood".

4

The statute law of England has likewise condemned gaming-houses. As early as 1541 in the time of Henry VIII Parliament enacted that no person should for his gain keep a gaming-house. The reason then was because gambling disturbed the military training. It distracted the young men from practising archery which was needed for the defence of the country. Several statutes have been passed since. All of them condemned gaming houses because of the mischiefs attendant on them.

5

When roulette was first introduced over two hundred years ago, Parliament tried to stop it. A statute of 1744 recited that the "pernicious" game called roulette or roly-poly was practised. It prohibited any person from keeping any house for playing it.

6

But all these statutes proved of no avail to prevent the mischief. Blackstone said that the legislature had been careful to pass laws to prevent "this destructive vice", but these laws had failed to achieve their object. The reason forthe failure was because the gamblers were too quick-witted for the law to catch them. He said that: "The invention of sharpers being swifter then the punishment of the law which only hunts them from one device to another", see his Commentaries, Book IV, C.13, p. 173. So much so that by the beginning of the nineteenth century gaming-houses were a scandal. The Victorian legislation, aided by the Victorian Judges in Jenks v. Turpin, (1884) 13 Queen's Bench Division, p. 505, reduced the evil but did not exterminate it.

7

History has repeated itself in our own time. Parliament made an attempt in 1960 to put the law on a sound footing. It had before it the Report of the Royal Commission on the subject. The Report drew a clear distinction between promoters who organised gaming for their own profit (which was an evil) and these who arranged gaming for the enjoyment of others without making a profit out of it themselves (such as gaming in a members' club which was innocent). The Royal Commission thought that "the main object of the criminal law should be to prevent persons being induced to play for high stakes for the profit of the promoter". They recommended legislation to achieve this object. The draftsmen set to work and produced the Bill which became the Betting and Gaming Act, 1960, since re-enacted in the 1963 Act. The old common law was abolished. The old statutes were repealed. New sections were enacted with the intention of ensuring that promoters did not make high profits out of gaming, either in clubs or elsewhere.

8

These sections have lamentably failed to achieve their object. Just as in Blackstone's time, so in ours. The Casino Companies have set up gaming-houses and made large profits out of them. They always seem to be one device ahead of the law. The first device they used after the 1960 Act was to levy a toll on the stakes. They used to promote roulette without a zero and demand sixpence for themselves on every stake. That device wasdeclared unlawful in Quinn v. Mackinnon, 1963, 1 Queen's Bench, p. 874. Next, they claimed that they could take sixpence from every player on every spin of the wheel. That device too was held to be unlawful in this Court in Allan (Merchandising) Ltd, v. Cloke, 1963, 2 Queen's Bench, p. 340. Then they claimed that they could charge every player ten shillings for every twenty minutes. That too was found to be unlawful in Kelland v. Raymond, 1964, 2 Queen's Bench, p. 108.

9

But one of their devices at this time succeeded. It was in chemin—de-fer. The promoters charged every player £5 for every "shoe" which took about 35 minutes. This was held to be lawful in Mills v. Mackinnon, 1964, 2 Queen's Bench, p. 96. I must say I doubt that decision. I should have thought that £5 for every 35 minutes was worse then ten shillings every half hour. At any rate, it is more profitable.

10

After these cases, the Casino Companies thought out a new device which proved to be far more profitable. They promoted roulette with a zero. This is a game in which the chances over a long period mightily favour the holder of the bank. Under this new device, the organisers so arranged things that they themselves nearly always held the bank. But they claimed it was lawful because the croupier every half hour "offered the bank" to the players. Very rarely, if ever, was the offer accepted: for the simple reason that it may be ruinous to hold the bank for only a few spins of the wheel. It is only worth holding if you can hold it for a long time, such as a week or a month. Nevertheless the organisers claimed that this "offer of the bank" rendered the gaming lawful. They were supported, we were told, by the opinion of some lawyers in the Temple, but there were conflicting views. At any rate, this device was highly profitable. For a time it was surprisingly successful, provided it was skilfully worked. It was not worked very skilfully in the first two cases: and the Casino Companies were convicted, one in Blackpool, the Casino Club (Bolton) Ltd. v. Parr 1966 64 Local Government Reports, p. 155, and the other in South end, see Kursaal No. 1, 1966, 1 Weekly Law Reports, p. 1960. But this device was worked skilfully in the third case, and the Casino Company was acquitted in the Divisional Court in Kursaal No. 2, 1967 1 Weekly Law Reports, p. 1227. That case has, however, recently been overruled by the House of Lords. The device of "offering the bank" will no longer work, see 1968, 1 Weekly Law Reports, p. 53.

11

But the Casino Companies do not seem to he unduly worried. They have not stopped their gaming. They have put on their thinking-caps and brought out another device. They do not trouble now to "offer the bank" to a player. They give a winner two kinds of chips, ordinary chips on which he collects his winnings, and special chips which he throws back. No doubt they hope that the same will happen with this device as with the others. It will have to be tested in the Courts. Meanwhile they expect to carry on with their gaming. If this is then held to be unlawful, they will try to think of another device. And so on ad infinitum: at least they may think so.

12

What are the consequences? They were stated with striking clarity by the Home Secretary, Mr Roy Jenkins, in the Times Newspaper of the 13th September, 1966. He is reported as saying: "The Betting and Gaming Act 1960 has led to abuses, particularly in the field of gaming clubs, which were not foreseen by its promoters. This country has become a gambler's paradise, more wide open in this respect then any comparable country. This has led to a close and growing connection between gamine clubs and organised crime, often violent crime, in London and other big cities. The fat profits made by proprietors (often out of the play itself and quite contrary to the intention of the 1960 Gaming Act) made them sitting targets for protection rackets. In addition, gaming on credit, with gaming debts unenforceable at law, means that strong-arm methods are sometimes used to extort payment from these who have gambledbeyond their means".

13

Mr Blackburn says that this state of affairs is due to the failure of the police to enforce the law and seeks to compel them to do it.

14

2. The steps taken by Mr Blackburn:

15

In 1966 Mr Blackburn was concerned about the way in which the big London clubs were being run. He went to see a representative of the Commissioner of Police and told him that illegal gaming was taking place in virtually all London Casinos. He was given to understand, he says, that action would be taken but nothing appeared to be done. On the 15th March, 1967, Mr Blackburn wrote a letter to the Commissioner in which he again stated that illegal gaming was taking place. He asked the Commissioner to assist him in prosecuting several London clubs. Following that letter he was seen by Mr Bearman on behalf of the Commissioner. Mr Bearman explained to him that there were difficulties in enforcing the provisions of the Act. He added that the way in which police manpower was used was a matter for the discretion of the Commissioner; and that it was felt that, as the gaming law stood, there were higher priorities for the deployment of police manpower. He also stated that it would be contrary to a policy decision for him to promote or assist in the promotion of a prosecution for breach of Section 32 of the 1963 Act.

16

Mr Blackburn was dissatisfied and made application to the Divisional Court for a mandamus directed to the Commissioner requiring three things: (1) to assist him and others to prosecute...

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