R v Herrod, ex parte Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Salmon,Lord Russell of Killowen |
| Judgment Date | 27 October 1976 |
| Judgment citation (vLex) | [1976] UKHL J1027-3 |
| Court | House of Lords |
[1976] UKHL J1027-3
House of Lords
Lord Wilberforce
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Salmon
Lord Russell of Killowen
Upon Report from the Appellate Committee, to whom was referred the Cause Walker against Leeds City Council, London Borough of Greenwich against Hunt and another, London Borough of Lewisham against Hunt and another (Consolidated Appeals), That the Committee had heard Counsel, as well on Thursday the 8th, as on Monday the 12th and Tuesday the 13th, days of July last, upon the Petition and Appeal of Leeds City Council of Civic Hall, Leeds, LS1 1UR, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 7th of November 1975, 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; as also upon the Petition and Appeal of The London Borough of Greenwich of Town Hall, Wellington Street, London SE18 6PW, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 7th of November 1975, 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: as also upon the Petition and Appeal of The London Borough of Lewisham of Town Hall, Catford, London, SE6 4RU, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 7th of November 1975, 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 (which said Appeals were, by an Order of this House of the 15th of March 1976 ordered to be consolidated); as also upon the Case of Charles Henry Walker, Alan Michael Hunt and Graham Smith, lodged in answer to the said Appeals; 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 Orders of Her Majesty's Court of Appeal of the 7th day of November 1975 complained of in the said Appeals, be, and the same are hereby, Affirmed, and that the said Petitions and Appeals be, and the same are hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeals, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Respondents to these appeals occupy premises in Leeds, Greenwich and Lewisham for the purpose of allowing members of the public to play "prize bingo". "Prize bingo" is an ordinary game of bingo—i.e. a game of pure chance—at which modest prizes are given to winners: there is a degree of sophistication in that, instead of the usual cards, there is, at the place of each player, a console at which illuminated numbers appear after a coin is inserted, which numbers can be covered up as they are drawn. The winning numbers themselves are obtained from number bearing balls which are thrown into the air by a simple blowing apparatus and caught by an employee. I do not think that any of this affects the nature of the game which remains essentially one of arriving at numbers, or combinations of numbers, by chance. In legal jargon the game is called an "amusement with prizes": this is an activity which has to be licensed by the local authority. In fact, each of the local authorities who are appellants has passed what is known as a "blanket" resolution, the effect of which if valid is that applications for permits or renewals of permits for the provision of amusement with prizes in any of the premises must automatically be refused, without a hearing or individual consideration. The Respondents contend that the resolutions are invalid. The resolutions are not challenged in these appeals on the ground that they cover too wide a range of premises, so in that respect we must treat them as validly made.
The procedure for testing the validity of the resolutions requires, in the first instance, an appeal to the Crown Court. In each case the Crown Court held that the resolution could not take effect. Then the Respondents applied for an order of certiorari and in each case the Crown Court's order was quashed by the Divisional Court. On appeal to the Court of Appeal those orders were restored. The local authorities now appeal to this House.
The provision under which a permit is obtained in respect of amusements with prizes is section 49 of the Betting Gaming & Lotteries Act 1963 (consolidating ( inter alia) the Betting & Gaming Act 1960) as amended by the Gaming Act 1968. As the Act of 1963 was originally passed, the grant or renewal of a permit was at the discretion of the local authority (Schedule 6, paragraph 2). Any grant, or renewal, could not be for a period less than three years, and there were provisions requiring the local authority to give the applicant a hearing, and limiting the grounds on which grants or renewals could be refused. Under this Act the Local Authority was entitled to lay down a general policy within which it could act, but it still had to consider individual cases and its decisions could be appealed.
This was altered by the Gaming Act 1968—an Act which introduced far-reaching changes of the law as to gaming in casinos (setting up the Gaming Board), as to gaming by means of machines, and other matters. Schedule 6 of the Act of 1963 was replaced by a new Schedule, paras. 3 and 4 of which are the crucial provisions:
"3. Any local authority may pass either of the following resolutions, that is to say—
( a) that (subject to paragraph 4 of this Schedule) the authority will not grant any permits in respect of premises of a class specified in the resolution;
( b) that (subject to paragraph 4 of this Schedule) the authority will neither grant nor renew any permit in respect of premises of a class specified in the resolution. …
4.(1) No resolutions under paragraph 3 of this Schedule shall have effect in relation to the grant or renewal of permits in respect of premises to which this paragraph applies.
(2) This paragraph applies to any premises used or to be used wholly or mainly for the purposes of a pleasure fair consisting wholly or mainly of amusements."
Are these premises—used wholly for playing prize bingo, (possibly with the addition of one or two "fruit machines") used "wholly or mainly for the purposes of a pleasure fair consisting wholly or mainly of amusements"? If so, they cannot be covered by a "blanket" resolution.
This expression "a pleasure fair" is neither a plain English expression nor a technical legal phrase though it has been used in a number of contexts since 1960 so it has not surprisingly given rise to a variety of legal interpretations. The Crown Court at Leeds held that the expression "pleasure fair" applied to the premises because the activity carried on there consists wholly or mainly of amusements and the other courts reached similar conclusions. The Divisional Court thought otherwise. In a very lucid judgment Lord Widgery C.J. took the view that the decision of the Leeds Crown Court gave no effect to the words "pleasure fair", and, in effect, gave so wide a meaning to the exemption in para. (2) as to leave no content for the rule. In his search for a possible meaning of "pleasure fair" he found, in section 49 of the Act of 1963, a reference to "a pleasure fair consisting wholly or mainly of amusements provided by travelling showmen". This, he said, immediately brought one within the reach of normal experience. This is an ordinary fun fair and everyone knows what a fun fair is. So when one finds the phrase "pleasure fair" simpliciter, it must mean the same thing as in the earlier section, with the omission only of the travelling showmen, the only difference is that one is mobile and the other stationary. Premises used for prize bingo alone—or (as is proposed in one case) for prize bingo with two fruit machines, could not then possibly come within the well understood meaning.
My Lords, I have been much attracted by this approach and it is simpler, and closer to the understanding of the normal reader, than any alternative: closer than that adopted by the Crown Courts or by the Court of Appeal. I should be very reluctant even to seek another, were it not for the consequences of adopting it. For under the legislation, as it stood before the Act of 1968, a large industry had grown up, in which many people not of great resources had invested, on the basis that, once planning permission and a permit had been obtained, they would be able so long as they conducted themselves properly to expect to be able to continue in business through renewals of their permits. But if the appellants are right, they are now unable even to present a case on the merits to the Local Authorities. They are automatically resolved out of business. This, in relation to...
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