Strang v Adair
| Jurisdiction | Scotland |
| Judgment Date | 21 February 1936 |
| Date | 21 February 1936 |
| Docket Number | No. 10. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Ld. Anderson. Lord Murray.
Statutory Offences—Betting and gaming—Lotteries—"Starting price points pool"—Competition depending on starting prices of the three placed horses in each race—Competitors selecting first, second or third horse—Lottery or pool betting operation—Betting and Lotteries Act, 1934 (24 and 25 Geo. V, cap. 58), secs. 21 and 26 (1).
The Betting and Lotteries Act, 1934, by sec. 21, makes all lotteries illegal, and, by sec. 22 (1), specifies certain offences in connexion with the conduct of lotteries. Sec. 26 (1) makes it an offence to conduct a competition in which (a) prizes are offered,inter alia, for forecasts of a future event; or (b)success does not depend to a substantial degree upon the exercise of skill. The proviso to the section exempts persons whose only trade or business is that of a bookmaker as defined by sec. 20 (1), and who carry on parimutuel or pool betting operations.
A bookmaker was convicted under sec. 22 (1) of the Act of 1934 in respect of his promotion and conduct of a competition in connexion with horse racing.
In a stated case it appeared that the competition, which was called a "Starting Price Points Pool" and was open to the general public, was one in which success depended upon points calculated upon the starting prices of, alternatively, the first, second or third horses in each of twelve races. In the entry form for the competition the competitor filled in a symbol—"1," "2" or "X" opposite each race. The symbol "1" signified that the competitor selected the first horse in the race, and he would be credited with points calculated upon the starting price of that horse. The symbol "2" signified selection of the second horse, and "X" the third horse. If the competitor's total points were high he would have a chance of success in a "high points pool"; if they were low, in a "low points pool." The competitor was in effect forecasting that the first, or second, or third horse would start at the highest, or alternatively the lowest, odds. He could not know the actual starting price of any horse until after the race. It was found in fact in the case that success in the competition depended largely upon chance, the element of skill being very small, but that persons who exercised their skill, judgment and knowledge of racecourses, horses and jockeys, and who studied "form," were able to eliminate the element of chance to a certain degree.
Held that, although knowledge and skill might in some cases aid in the selection of symbols, success in the competition was ultimately determined by such uncertain factors that it was preponderatingly dependent on chance; and, accordingly, that the competition was a lottery.
Held further, per Lord Anderson, that the competition was not a pool betting operation within the meaning of sec. 26 (1) of the Act of 1934.
Barnes v. Strathern, 1929 J. C. 41, followed.
Statutory Offences—Betting and gaming—Lotteries—Destruction of "documents" relating to promotion or conduct of lottery—Postal orders, money orders and cheques representing payments by persons taking part in lottery—Betting and Lotteries Act, 1934 (24 and 25 Geo. V, cap. 58), sec. 30 (3).
The Betting and Lotteries Act, 1934, enacts, by sec. 30 (3), that the Court before which a person is proved to have committed any offence under Part II of the Act in relation to a lottery shall order (a) forfeiture of any coins or bank notes which are proved to represent the price of tickets or prize money or prizes in the lottery, and (b) destruction of "all documents (other than bank notes) produced to the Court which are shown to the satisfaction of the Court to relate to the promotion or conduct of the lottery."
A bookmaker was convicted, under sec. 22 in Part II of the Act of 1934, of having conducted an illegal lottery. The Sheriff-substitute ordered forfeiture of one ten shilling note, and the destruction of all coupons produced in the case, but refused to order destruction of postal orders, money orders and cheques, which represented payments to the accused by persons taking part in the lottery in respect of their tickets therein.
Held that the postal orders, &c., in question, since they represented the price of tickets in the lottery, were "documents" relating to the conduct of the lottery within the meaning of sec. 30 (3) of the Betting and Lotteries Act, 1934, and, accordingly, that they fell to be destroyed.
On 12th June 1935 Thomas Strang, commission agent, and Robert Powrie, his manager, were charged in the Sheriff Court at Edinburgh upon a summary complaint at the instance of James Adair, Procurator-fiscal, Edinburgh, with contraventions of subsections (b), (c)and (f) of section 22 (1) of the Betting and Lotteries Act, 1934.1
The complaint set forth, inter alia:—"You are charged … that you did during the period between 20th May and 9th June 1935, while acting in concert, at Hawkhill Avenue aforesaid, (1) sell and distribute and have in your possession for the purpose of sale and distribution coupons or tickets in lotteries known as the “T.S. 2d. Starting Price Points Pool,” organised by you weekly in connexion with horse racing on specified dates and at certain racecourses during the ensuing week, in connexion with which lottery money prizes were offered; Contrary to the Betting and Lotteries Act, 1934, section 22 (1) (b); (2) publish in various newspapers, including those specified in the Schedule hereto annexed, advertisements of the said lotteries, and have in your possession for publication to those who cared to call to examine same lists of prizewinners in the said lotteries; Contrary to the said Act, section 22 (1) (c); and (3) use the premises occupied by
you, the said Thomas Strang, for the distribution and reception of tickets and for the purposes of organising, conducting, and controlling the said lotteries; Contrary to the said Act, section 22 (1) (f); whereby in respect of each of the said contraventions you are each guilty of an offence and are liable to the penalties set forth in respect of a first offence in the said Act, section 30 (2) (a)."
The accused objected to the competency and relevancy of the complaint upon the following grounds:—"(1) That the complaint is irrelevant and lacking in specification and does not specify themodus or nature of the alleged lottery or in what respect it is a lottery; (2) That the complaint is incompetent and/or irrelevant in respect that the principal accused, Thomas Strang, and his servant, Robert Powrie, being bookmakers as defined by section 20 (1) of the Betting and Lotteries Act, 1934, are entitled to conduct and carry on pari-mutuel and pool betting operations in terms of section 26 of said Act, and the complaint discloses no offence so far as the accused are concerned; and (3) That the third charge incorporates words that are not provided in the said Act." These objections were repelled by the Sheriff-substitute on 4th July 1935, and were not insisted in when the case came before the High Court.
On 13th August 1935 the acting Sheriff-substitute (Donald) found the accused guilty as libelled; fined the accused Strang £100 and admonished the accused Powrie; ordered the forfeiture of a bank note of the value of ten shillings produced; ordered the destruction of all coupons produced which related to the lottery; but refused a motion by the Procurator-fiscal for the destruction of the postal orders, money orders and cheques produced.
At the request of the accused a case was stated for the opinion of the High Court of Justiciary. Subsequently the Procurator-fiscal craved the Court to state a case quoad the Sheriff-substitute's decision as to destruction of documents. By agreement one case was stated, viz., that at the instance of the accused.
The stated case set forth, inter alia, that, on the trial being adjourned until 7th August 1935, a joint minute of admissions was lodged for the appellants and the respondent in the following terms:—"(1) That the appellant Strang carries on business as a bookmaker and the appellant Powrie acts as his manager in connexion therewith. In connexion with said business the appellants operate weekly pools on football matches during the football season from August to May annually, and during the off season from May till August “Starting Price Pools” in connexion with horse racing. (2) That the appellant Strang occupies premises at Hawkhill Avenue, Edinburgh, which are used by him as his headquarters for the said business. (3) That, in connexion with horse racing at different racecourses in England during the two weeks ending 1st and 8th June 1935, the appellants organised pools known as “The T.S. 2d. Starting Price Points Pool,” and issued from the said headquarters coupons relative thereto, and received back there completed coupons. (4) That the coupons produced herewith are specimens of such coupons, and that the conditions of the said pools are embodied therein, such conditions governing the whole conduct of the pools. Such pools are conducted on a credit basis. (5) That the appellants published in various newspapers, including those produced, the advertisements shown therein, to which reference is made. (6) That, on 8th June 1935, the said headquarters of the appellant Strang and various other premises used by distributors and collectors of said coupons throughout Edinburgh were raided and quantities of said coupons seized by the police. (7) That along with the coupons the police took possession of the postal orders, cheques, money orders and bank note produced, estimated to value in cumulo£1775, 13s. 6½d., and sealed up in presence of representatives of the police and the appellants. (8) That the said postal orders, cheques, money orders and bank note represent payments by persons filling up said coupons and forwarded by them to the appellants in respect of said coupons."
The case also set forth:—"No evidence...
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