[DIVISIONAL COURT]

CAPPER AND ANOTHER v. BALDWIN.

Gaming - Amusements with prizes - Gaming machine - Permit for the provision of amusement with prizes in public-house - Fruit machine operated by discs - Winnings in form of discs exchanged for goods on sale - Percentage of discs retained by machine - Whether an "amusement with prizes" - Betting, Gaming and Lotteries Act, 1963 (c. 2), s. 49.

The licensee of a public-house held a permit granted by the local authority under Schedule 6 to the Betting, Gaming and Lotteries Act, 1963, for the provision of amusement with prizes in his premises He had installed a fruit machine owned by A., who had supplied it knowing the purpose for which it was to be used. The machine was operated by inserting discs, which could be purchased by the players for 6d. each. The discs received in the form of winnings could be exchanged for goods on sale. The machine was adjusted so that 38 per cent of the discs inserted were retained in the machine and 62 per cent. returned to the players; the chances of winning the jackpot were three in 8,000. The justices convicted the licensee of knowingly allowing the public-house to which the public had access to be used for the purpose of gaming, and A. for that, knowing that the public-house would be used for gaming, he caused a gaming machine to be placed on the premises, both offences being contrary to sections 33 and 52 (2) of the Betting, Gaming and Lotteries Act, 1963. Quarter sessions allowed the defendants'

appeals on the ground that the fruit machine was an amusement with prizes within the meaning of the Act of 1963, and, consequently, was lawfully operated pursuant to section 49 of the Act.¹ The prosecutor appealed:-

Held, that the licensee, being the holder of a permit pursuant to Schedule 6 to the Betting, Gaming and Lotteries Act, 1963, was entitled, under section 49, to keep an amusement with prizes in his public-house, including a machine operated by chance and for private gain; that this fruit machine was in fact and in law an amusement with prizes within the ordinary meaning of those words, and accordingly no offence had been committed.

CASE STATED by Bradford Quarter Sessions.

On May 13, 1964, the defendants, Albert Capper and Thomas Armour, appeared at Bradford Quarter Sessions as appellants against certain convictions by the Bradford city justices, on February 28, 1964, upon informations laid by the prosecutor, Cyril Baldwin, inspector of police. The informations were that the first defendant, Albert Capper, on October 16, 1963, on premises to which the public had access, the Blue Lion Hotel, Manchester Road, Bradford, knowingly allowed the premises to be used for the purposes of gaming by means of a gaming machine contrary to sections 33 and 52 (2) of the Betting, Gaming and Lotteries Act, 1963, and secondly, that the defendant Thomas Armour, on a day unknown between August 29 and October 16, 1963, knowing that certain premises to which the public had access, the Blue Lion Hotel, Manchester Road, Bradford, would be used for gaming by means of a gaming machine, caused a gaming machine to be placed on the premises contrary to sections 33 (1) and 52 (2) of the Betting, Gaming and Lotteries Act, 1963. The defendants' appeals, by consent, were taken and heard together on May 13, 1964, and both were allowed. The prosecutor, being dissatisfied with the determination of the appeals, as

1 Betting, Gaming and Lotteries Act 1963, s. 49: "(1) The provisions of this section shall have effect for the purpose of permitting the provision of amusements with prizes - (a) on any premises in respect of which a permit for the provision thereon of such amusements has been granted by the local authority, and is for the time being in force. under Sch. 6 to this Act; ... (2) Nothing in section 32, 33, 34, 41 or 42 of this Act shall apply in relation to amusements with prizes provided on such premises as are mentioned in subsection (1) (a)... but, in relation to any such amusement to which any of those sections would apply but for this subsection, the conditions set out in subsection (3) of this section shall be observed, and if any of those conditions is contravened every person concerned in the provision or conduct of that amusement shall be guilty of an offence unless he proves that the contravention occurred without his consent or connivance and that he exercised all due diligence to prevent it."

being erroneous in point of law, requested the deputy recorder, Mr. C. Raymond Dean, Q.C., to state the following case for the opinion of the High Court.

Upon the hearing of the defendants' appeals the following facts were either proved or admitted. The first defendant was the licensee of the Blue Lion Hotel, a public-house to which the public have access, and on September 6, 1963, upon his application, he was granted by the local authority a permit under Schedule 6 to the Betting, Gaming and Lotteries Act, 1963, for the provision of amusements with prizes at that public-house for a period, three years from August 30, 1963, to September 1, 1966. When the permit was issued by the local authority, who had powers so to do under the Act, a cyclostyled letter or notice was attached. The permit was in printed form and was as required by the statute. The notice read: "Betting, Gaming and Lotteries Act, 1963. Amusements with prizes. Notice. You must clearly understand that although you have now been granted a local authority permit for the conduct of amusements with prizes the permit does not extend to the conduct of gaming on your premises.

You should therefore ensure by taking advice from a solicitor that the type of machine which you are proposing to instal, and the use to be made of it does not contravene any of the provisions of the Betting, Gaming and Lotteries Act, 1963. The mere existence of a permit will not protect you from prosecution if the use of the machine proves to be unlawful."

A gaming machine was installed in the public-house and it was of the type commonly called a "fruit machine" or "one-armed bandit." It was operated by pulling a handle at the side of the machine. Cylinders revolved and eventually came to rest with certain pictures thereon, and according to the combination shown the operator received or did not receive a benefit. The machine was operated by the insertion, not of coins, but of discs, and if the operator was successful he received in the first instance a disc or a number of discs which he could then exchange in the public-house for goods which were there on sale. In the premises of the public-house itself there was exhibited a notice, informing the customers that the machine could only be operated by the insertion of discs which could be purchased over the bar for the price of sixpence each, and further informing customers, if they were successful, that the discs which they received from the machine could be exchanged for goods on sale there. This machine was the property of the second defendant, and it was

not contended that he did not supply it save in the full knowledge of its proposed user.

A police constable attended at the public-house on the night of October 15, 1963, and he saw the machine in the bar lounge and the notice on the wall. He observed a woman customer insert three discs into the machine. She won two discs. As a result she promptly reinserted them and lost. He returned to the premises on October 16, 1963, when he saw another customer purchase four discs over the bar, which he placed in the machine one at a time and as a result of which he lost. On October 17, 1963, the police descended on the premises with a warrant which was executed. They seized the machine and a certain quantity of discs and also the card displayed in the public-house. The first defendant knowingly allowed his premises to be used in the above way. The second defendant was seen by an inspector of police in the evening of October 17, 1963. He was told the machine had been seized and he admitted he was its sole owner. When asked for an explanation why he had installed the gaming machine on the premises to which the public had access, the only explanation he gave was "I put in an application for a permit in July. I was told the machine could go on disc play, but the jackpot must not pay above the equivalent of 50 shillings' worth of goods." The discs which remained in the machine were removed and again the second defendant did not trouble to check the activities of the police in that respect. He explained that if the jackpot was won on the machine, the operator would receive two large discs and 20 small. The officer counted altogether 1,958 discs in the cash-box. The second defendant caused the machine to be placed in the public-house knowing the premises were to be used for gaming.

The machine and all the discs were sent to the Forensic Science Laboratory at Harrogate, where the director, Dr. Barclay, examined the machine. It was a typical mechanically operated gaming machine. He found that 62 per cent. of the discs which were inserted were returned to the players and a total of 38 per cent. were retained in the machine. The player's chances of winning the jackpot were three chances in 8,000 plays. A trade union secretary said that he had played a similar machine at other premises and that such a machine gave him entertainment and amusement. He found he thought the revolution of the discs or cylinders themselves an amusement without having regard to the possibility of winning.

It was contended by the prosecutor (i) that the machine was

a gaming machine as defined in section 33 (3) of the Betting, Gaming and Lotteries Act, 1963; (ii) that the machine was not an amusement with prizes within the meaning of section 49 of the Act and consequently could not lawfully be operated under section 49; (iii) that in construing the expression "amusements with prizes" as contained in section 49 one should decide, in the first instance, whether there was any element of amusement in the machine provided, leaving altogether out of account the element of prize.

It was contended, on behalf of the defendants, that the machine in question was an amusement with prizes within the provisions of the Betting, Gaming and Lotteries Act, 1963, and consequently was lawfully operated pursuant to section 49 of the Act.

On the facts, and after hearing legal argument, the deputy recorder came to the conclusion that the machine was at once a gaming machine within the meaning of section 33 of the Betting, Gaming and Lotteries Act, 1963, and also an amusement with prizes within the meaning of that term in section 49 of the Act, and that it was lawfully operated under the Act. His reasons were that a proper construction of sections 33 and 49 required him to reach that conclusion; further or alternatively, that the machine constituted an amusement with prizes in the ordinary sense of that term; that the prosecutor's third contention was ill-founded; alternatively, if that contention was well founded, it could not properly be held that if one took away the element of prize, the operation of the said machine did not or might not come within the definitions of "amusement" in the dictionaries and in Customs and Excise Commissioners v. E. Keil a Co. Ltd.²

The deputy recorder allowed the appeals. The prosecutor appealed.

The question of law for the opinion of the High Court was whether the machine was an amusement with prizes within the meaning of section 49 of the Betting, Gaming and Lotteries Act. 1963.

Paul Wrightson Q.C. and Gilbert Gray for the prosecutor. The Betting, Gaming and Lotteries Act, 1963, draws a clear distinction between gaming for money or money's worth, gaming by means of a machine and playing with a machine for amusement. The Act should be interpreted by reading Part II and Part IV together and also the interpretation section in Part V.

2 [1951] 1 K.B. 469; 66 T.L.R. (Pt. 2) 867.

The Act makes the playing of games of chance with machines unlawfully unless certain conditions are fulfilled; these are to be found in sections 33 (2), 49 (3) and (4) and in section 50, and those sections should also be read together. Section 49 refers to Schedule 6, under which a local authority may grant a permit for the provision of amusement with prizes, but until the Betting. Gaming and Lotteries Act, 1964, comes into force a local authority cannot impose any conditions: Hewison v. Skegness Urban District Council.³

There must be a clear distinction between a gaming machine and amusement with prizes for otherwise section 33 would be otiose. Section 33 allows gaming machines in private places and it would be expected that there would be less stringent conditions, but the stakes, under subsection (2) (c), cannot be applied for private gain; section 49 does allow stakes to be applied for private gain.

Section 141 of the Licensing Act, 1953, prohibits all forms of gaming in public-houses. When the legislature amended that section by section 40 of the Act of 1963, it could not have been the intention to allow gaming machines in a public-house provided that part of the stakes were applied for private gain. If that were so, a licensee with a permit could install a roulette wheel with a zero and he could install any number of gaming machines and thereby obtain a greater profit than from selling beer.

It is difficult to define amusement with prizes, but here there is no need to do so for this fruit machine is clearly not an amusement with prizes, whilst a pin table is an amusement with prizes. Gamblers obviously find gaming amusing and the trade union secretary found this type of machine amusing, but a gaming machine is not an amusement in the true meaning of that word.

The defendants tried to get round the conditions of section 49 by the use of discs. The discs are no more than counters or chips and the prizes distributed or offered in the form of discs did exceed one shilling. The provisions of section 49 (3) (b) were contravened: see Rogers v. Cowley.⁴ The fact that the machine, as operated, could not comply with the conditions in section 49 (3), as a matter of construction, implies that it could not come within the definition of amusements with prizes." If so, an offence under section 33 has been proved.

3 [1963] 1 Q.B. 584; [1963] 2 W.L.R. 141; [1963] 1 All E.R. 205, D.C.

4 [1962] 1 W.L.R. 770; [1962] 2 All E.R. 683, D.C.

R. J. Harvey for the defendants. The law is that gaming is lawful subject to the conditions of the Bettiug, Gaming and Lotteries Act, 1963, and whether or not gaming should be allowed in a public-house is immaterial, for section 40 of the Act states specifically that it may take place in a public-house if the conditions of the Act are complied with. A local authority may grant a permit, under Schedule 6 to the Act, to an occupier of a public-house for the provision of amusement with prizes. Section 33 (3) defines a gaming machine and that definition includes a fruit machine and a pin table. If such a machine is also an amusement with prizes and a permit has been granted, section 49 applies and the machine can be installed for private gain and as a commercial undertaking. Here there is a finding of fact that the machine was lawfully operated under section 49 and the case stated does not say whether or not the conditions in subsection (3) were complied with.

Wrightson Q.C. replied.

LORD PARKER C.J. stated the facts and continued. The facts have only to be stated to make one feel that something is very odd in having a machine such as this in a public-house. Starting with the impression that Parliament could not have intended that, and going, in the first instance, to section 141 of the Licensing Act, 1953, one finds that, if the holder of a justices' licence suffers any gaming to be carried on in his premises, he shall be liable to a penalty. But the Betting, Gaming and Lotteries Act, 1963, makes it perfectly clear that under certain conditions a machine such as this can be operated in a public-house. In particular, section 40 provides specifically that in section 141 of the Licensing Act, 1953, any reference to gaming shall be construed as a reference to the playing of any game in such circumstances that an offence under Part II of the Act is committed.

In the Betting, Gaming and Lotteries Act, 1963, one finds, as one would expect, that a gaming machine such as this, which is defined in section 33 (3) as "a machine for playing a game of chance, being a game which requires no action by any player other than the actuation or manipulation of the machine," would not be allowed in a place to which the public have access. Section 33 (1) specifically provides that such a machine shall not be used on any premises, whether on payment or otherwise, to which the public have access or which are used wholly or mainly by persons under the age of 18 or except in accordance with certain conditions. It is quite clear, therefore, that section 33 (1)

is laying down an absolute prohibition on the use of such a machine in a place to which the public have access; it quite clearly would cover a public-house.

The difficulty arises because Part IV of the Act is dealing with amusements with prizes, and section 49 is clearly envisaging the provision of amusements with prizes as part of commercial entertainments. In particular that section expressly covers the case of amusements provided by travelling showmen at pleasure-fairs. It is quite clear, therefore, that provision is being made authorising amusements with prizes, even though part of the money is retained for the purposes of private gain by the proprietor.

Section 49 (1) provides as follows: "The provisions of this section shall have effect for the purpose of permitting the provision of amusements with prizes - (a) on any premises in respect of which a permit for the provision thereon of such amusements has been granted by the local authority, and is for the time being in force, under Schedule 6 to this Act; ..." Paragraph (b) is dealing with the pleasure-fair, to which I need not refer. Subsection (2) provides: "Nothing in" a number of sections, including section 33 "of this Act shall apply in relation to amusements with prizes provided on such premises as are mentioned in subsection (1) (a) or at such a pleasure fair as is mentioned in subsection (1) (b) of this section; but, in relation to any such amusement to which any of those sections would apply but for this subsection, the conditions set out in subsection (3) of this section shall be observed, and if any of those conditions is contravened every person concerned in the provision or conduct of that amusement shall be guilty of an offence unless he proves that the contravention occurred without his consent or connivance and that he exercised all due diligence to prevent it."

Subsection (3) then sets out the conditions to which at the moment I need not refer. Subsection (4), though not strictly relevant to this case, does show that an amusement with prizes may be constituted by a machine played by the insertion of a coin. It provides that: "Where any amusement with prizes takes the form of a game played by means of a machine, being a game which is made playable by the insertion of a coin or coins into the machine, then ..." and the rest is not material.

Accordingly, it is quite clear that under section 49 amusements with prizes can include machines kept in a public place, including a public-house, provided always there is a permit, and

also that the machine can operate by chance and can operate for the purpose of private gain. Therefore it really comes to this, whether this machine can be said as a matter of fact and as a mutter of law to be an amusement with prizes. Looking at the thought that a gaming machine such as this was an amusement with prizes. It may at first be thought to be inapt that winnings are described as prizes but I attach no importance to that. In addition, and again as a matter of fact, the deputy recorder (and insofar as it is a matter of fact he is the judge) came to the conclusion that he was quite unable to say that this machine was not an amusement.

What is urged, however, by Mr. Wrightson on behalf of the prosecutor, is really this, that as a matter of law such a machine as this is excluded from the ambit of "amusements with prizes" within section 49. Having listened to him, I hope with care, I find it quite impossible to find any legitimate means of including some amusements with prizes and excluding other amusements with prizes in construing the words in section 49. Mr. Wrightson himself confessed that he is unable to draw the line, and say what amusements with prizes come within the section and what do not. He says he does not have to draw the line; it is sufficient to say that this case falls on one side of it. But I can see no legitimate means of including some and excluding others.

Mr. Wrightson's argument comes down to this, that if he is wrong and you cannot exclude such a machine as this, it really is driving a coach and four through section 33 itself and what, he maintains, must have been the plain intention of Parliament, namely, an intention not to permit such a machine to be operated for private gain in a public-house.

I agree that it is very odd, but the intention of Parliament must be deduced from the language used, and it may well be that Parliament expected the necessary limitation to be imposed by the permit which is a condition precedent to the operation of such a machine in such a place. But be that as it may, I am quite unable to construe the words in such a way as to exclude this machine. As I understand the matter, there is a recent Act of Parliament which has not come into force by which the legislature have provided power to exclude certain premises and by limiting the number or types of machines to be installed.

The only argument which attracted me at one time was an argument based on the conditions. It is true that the form of section 49 is not, as in section 50, that a machine such as

this, being an amusement with prizes, shall not, when installed in a public place, constitute an offence if certain conditions are complied with. lf so and there was a breach of condition, one could prosecute for the offence created under section 33. But it is quite clear from the reading of section 49 (2) that Parliament here is providing for a breach of the condition being an offence in itself. Notwithstanding that, it did seem to me that subsection (3) might be an aid to construction in the sense that if one finds a gaming machine which could not possibly be operated so as to comply with the conditions, then that would be some ground for saying that that type of machine at any rate could not come within the ambit of the expression "amusements with prizes." It is a new point; I gather it was not raised before the deputy recorder, and indeed there is a passage in the case which recites that the machine was lawfully operated, by which I understand it to mean was operated in accordance with the conditions. But be that as it may, I am quite unable to say that this machine could not be made to operate so as to comply with the conditions. Having formed that view, I do not propose to say more about it, because it may well be that as a result of this decision the next step will be a prosecution for non-compliance with the conditions. Therefore the less said about it the better. In my judgment the deputy recorder came to a correct conclusion, and this appeal should be dismissed.

MARSHALL J. I agree and for the same reasons.

WIDGERY J. I also agree.

Solicitors: Wilkinson, Howlett & Moorhouse for H. Patten, Town Clerk of Bradford; Maltz, Mitchell & Co.

H. J.