Victor Chandler International v Commissioners of Customs and Excise and Another
| Jurisdiction | England & Wales |
| Judgment Date | 29 February 2000 |
| Date | 29 February 2000 |
| Court | Court of Appeal (Civil Division) |
Gaming - Betting - Prohibition on advertising - Offshore credit betting business - Proposal to make odds available in United Kingdom by teletext broadcasts - Whether advertisements inviting making of bets -
The claimant operated an offshore credit betting business from Gibraltar. It proposed to broadcast its odds on teletext in the United Kingdom by direct electronic transmission from its terminal in Gibraltar and invited the commissioners to confirm that such broadcasting would not constitute a breach of the prohibition, in section 9(1)(b) of the Betting and Gaming Duties Act 1981,F1 against the issuing, circulation or distribution in the United Kingdom of any advertisement or other document inviting the making of bets. The commissioners refused confirmation but the judge held that the prohibition on advertisements in section 9(1)(b) was limited to advertisements in documentary form and granted declarations that the claimants would not be committing an offence if they operated their business in the proposed manner.
On appeal by the commissioners:—
Held, allowing the appeal and setting aside the declarations, that to construe section 9(1)(b) of the Betting and Gaming Duties Act 1981 as only applying to advertisements in documentary form took insufficient account of the technological advances since the statutory language first appeared in 1952; that the clear parliamentary purpose of section 9(1)(b) was to protect the revenue derived from betting duty by prohibiting offshore bookmakers from advertising in the United Kingdom for business; and that, accordingly, since it was clear that the developments which had taken place since section 9(1)(b) was enacted were within the mischief at which the provision was aimed, the section was to be construed so as to catch advertisements of the sort which the claimant was arranging to be broadcast notwithstanding that the provision was penal in nature (post, pp. 1304F–1305E, 1309A, 1310D, 1311A–B).
The following cases are referred to in the judgments:
Alliance & Leicester Building Society v. Ghahremani (
Derby & Co. Ltd. v. Weldon (No. 9) [
Fitzpatrick v. Sterling Housing Association Ltd. [
Grant v. Southwestern and County Properties Ltd. [
Reg. v. Ireland [
Reg. v. Westminster City Council, Ex parte A (
Rollo v. H.M. Advocate,
The following additional cases were cited in argument:
Bowers v. Gloucester Corporation [
Grupo Torras S.A. v. Al Sabah [
Huddleston v. Control Risks Information Services Ltd. [
Llewellyn v. Vale of Glamorgan Railway Co. [
Pinner v. Everett [
Reg. v. Bloxham [
Reg. v. Ottewell [
Reg. v. R. [
Appeal from Lightman J.
By a claim form dated 3 June 1999 the claimant, Victor Chandler International Ltd., applied for (1) a declaration that no offence under section 9(1)(b) of the Betting and Gaming Duties Act 1981 would be committed by the claimant, the second defendant, Teletext Ltd., or any other person involved in the operation of the claimant's business in the proposed manner of doing business, namely by making its odds available in the United Kingdom by broadcast on Teletext and Skytext by way of relaying its odds from Gibraltar by direct electronic transmission to Teletext and Skytext in the United Kingdom and by Teletext and Skytext thereafter relaying the claimant's odds by direct electronic transmission to the sites within the United Kingdom from which their broadcasts were made, (2) further or alternatively a declaration that the offence prescribed by section 9(1)(b) of the Act of 1981 required the knowing issue, circulation or distribution in the United Kingdom of a document inviting or otherwise relating to the making of bets. On 16 July 1999 Lightman J. granted the declarations sought.
By a notice of appeal dated 4 August 1999 and with the permission of the judge the commissioners appealed on the grounds that the judge erred in law (1) in holding that the prohibition in section 9(1)(b) of the Act of 1981 extended only to advertisements in documentary form; and (2) in holding that the method of transmitting advertisements proposed by the claimant did not involve the issue, circulation or distribution in Great Britain of any document inviting or otherwise relating to the making of bets to which section 9 of the Act of 1981 applied.
The facts are stated in the judgment of Sir Richard Scott V.-C.
Philip Sales and Timothy Pitt-Payne for the commissioners.
David Oliver Q.C. and Mark Cunningham for the claimant.
The second defendant did not appear and was not represented.
29 February. The following judgments were handed down.
Sir Richard Scott V.-C. 1. This appeal raises a narrow question of construction of section 9(1)(b) of the Betting and Gaming Duties Act 1981. The Act of 1981 is a consolidating Act which reproduces previously enacted statutory provisions. Under section 1(1)(a) of the Act betting duty is chargeable on any bet which is not an on-course bet and which “is made with a bookmaker in the United Kingdom.” There are other circumstances set out in the subsection in which betting duty becomes chargeable but I need not refer to them. Under section 2(1) the betting duty has to be paid “in the case of a bet with a bookmaker … by the bookmaker.” Naturally enough bookmakers make arrangements under which the real cost of the betting duty for which they become liable is borne by the punters who place bets with them.
2. Betting duty is an excise duty and the Commissioners of Customs and Excise are responsible for its collection.
3. Section 9 of the Act has the sidenote “Prohibitions for protection of revenue.” It reproduces provisions which had their origin in the earlier legislation. The purpose of section 9, and its statutory predecessors, is to prevent bookmakers who are based offshore, and who are therefore not chargeable under section 1(1)(a), from soliciting bets from people within the United Kingdom.
4. Section 9 provides:
“(1) Any person who — (a) conducts in the United Kingdom any business or agency for the negotiation, receipt or transmission of bets to which this section applies, or (b) knowingly issues, circulates or distributes in the United Kingdom, or has in his possession for that purpose, any advertisement or other document inviting or otherwise relating to the making of such bets … shall be guilty of an offence. (2) Except as mentioned in subsection (3) below, this section applies to … (b) all bets made with a bookmaker outside the United Kingdom …”
5. Subsection (3) excludes certain types of bet from the operation of the section and subsection (4) deals with the sentences that can be imposed on persons convicted of a section 9 offence. Nothing, for present purposes, turns on these subsections. Subsection (5) has, however, some relevance. It provides:
“A person who makes or tries to make a bet, or who gets or tries to get any advertisement or other document given or sent to him, shall not be guilty of an offence by reason of his thereby procuring or inciting some other person to commit, or aiding or abetting the commission of, an offence under this section.”
6. The evident purpose of subsection (5) is to allow punters to bet with offshore bookmakers and to obtain documentary information about the odds or other services on offer from offshore bookmakers without being guilty of a section 9 offence. If an offshore bookmaker sends to an individual in this country documentary material “relating to the making of … bets,” the offshore bookmaker, but not the individual, will be guilty of a section 9(1)(b) offence.
7. The main purpose of section 9 is to protect the revenue but that is not its only purpose. The effect of the section, and presumably one of its purposes, is to protect domestic bookmakers from unfair competition from those who operate offshore. An offshore bookmaker who is not chargeable with betting duty will be able to offer a more attractive return to punters than domestic bookmakers can offer. Nothing in the Act prevents domestic punters from placing their bets with offshore bookmakers. But section 9(1)(b) prohibits the issue, circulation or distribution in this country of advertisements or other documents relating to the making of bets with offshore bookmakers.
8. The issue for decision on this appeal is whether an offshore bookmaker who arranges for advertisements for his services to be made available for viewing on television screens in the United Kingdom by being broadcast on Teletext commits an offence under section 9(1)(b).
9. Lightman J. [
10. The Commissioners of Customs and Excise, defendants below, have appealed. Teletext Ltd., who are responsible for Teletext...
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