Seay v Eastwood and Anor
[1976] 1 WLR 1117(Judgment by: Lord Russell of Killowen)
Seay
vEastwood and Another
Judges:
Lord Wilberforce
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Salmon
Lord Russell of Killowen
Judgment date: 1976 July 5, 6; 28
Judgment by:
Lord Russell of Killowen
My Lords, the first appellant is a licensed bookmaker carrying on his bookmaking business at premises for which he holds a bookmaking office licence under the Betting and Lotteries Act (Northern Ireland) 1957. Section 13 (1) (a) provides:
"A person shall not -
(a) carry on or permit to be carried on in a licensed office any trade, profession or business whatsoever except the business of bookmaking ..."
The appellant was convicted of an offence under that provision, and the question for determination is whether the facts of the case justify that conviction as a matter of law.
At his licensed office the appellant maintained two gaming machines, commonly known as fruit machines or one-armed bandits, available to customers in the office to operate in the hope of personal gain by the insertion of an appropriate coin and the operation of a lever. As is common with such machines the machinery was adjusted so as to result in the owner of the machine retaining a percentage - in this case 27 per cent. - of the overall input. By section 20 of the Act of 1957 it is provided, so far as presently relevant:
"the expression - 'bookmaker' means any person who whether on his own account or as servant or agent of any other person, carries on, whether occasionally or regularly, the business of receiving or negotiating bets, ... and the expression 'bookmaking' shall be construed accordingly; ..."
For the appellant it is contended that when a person inserts the appropriate coing into the slot he is making a bet with the owner and the owner is receiving a bet from him: therefore the provision and operation of the machines are part of a bookmaking business and the conviction was accordingly wrong.
My Lords, I am quite unable to accept that in providing these machines for use by frequenters of his office premises it can fairly be said that the appellant was carrying on the business of receiving bets. It is, of course, true that the machine bears upon it a statement of the payout to be expected - which can be described as the odds - on varying combinations of objects appearing in the window after the lever has been operated. But when a customer inserts his coin it is a matter of absolute and complete indifference to the owner of the machine whether that customer is lucky or unlucky. It cannot make the slightest difference to the owner, who will get his 27 per cent. of the total input in any event, no more and no less. Assuming the insertion of the coin to be in some sense a transaction between the customer and the owner, in my opinion a transaction under which by its very nature one party cannot be affected in any way by the outcome cannot be properly described as a bet. Of course a bookmaker in the ordinary course will try to make his book so as to show a profit in all circumstances: and of course a person who lays £5 to £1 with A against an event and then stakes £1 at the same odds with B on the same event Is wholly indifferent to the outcome. But this indifference or relative indifference does not arise from the very nature of any one transaction whose characteristics as a bet are under scrutiny. In the present case I would not say that the owner was carrying on the business of receiving bets: rather was he providing his customers with a means of gambling in exchange for a percentage of the money inserted in the machines.
I would also say that the action of inserting a coin, taken by itself, cannot properly be described as the making of a bet by the person inserting it. He is not forecasting an event or series of events: he is not backing his estimate of any outcome: he is simply hoping that some paying combination may turn up: he is gambling but not in any ordinary sense of the word betting.
The argument for the appellant required several rather sweeping propositions. The Finance Act (Northern Ireland) 1966 (since replaced) by section 9 introduced a duty of excise to be known as the general betting duty of an amount equal to 21/2 per cent. of the amount staked. For the appellant it was accepted that his contention involved the application of such duty to each coin inserted in the machines, notwithstanding that the same statute by section 10 introduced a duty of excise of a substantial annual sum on a licence for every machine made available for play on premises specified in the licence.
It was further contended that the operation of such machines was wholly illegal everywhere unless it was permitted as part of the bookmaker's business at a licensed betting office. If the operation of such machines is indeed illegal the system of licensing their operation for substantial annual sums under section 10 of the Act of 1966, continued in subsequent statutes, must rank as a legislative confidence trick, leading presumably (on the appellant's argument) to a substantial group of unlicensed bookmakers offending also under the Act of 1957: it is not necessary to express an opinion upon this. I am content to say that the argument that, if the appellant is right on his main point, the confidence trick is at least not played on licensed bookmakers does not persuade me on this main point.
On these grounds, I am of the opinion that the appellants were rightly convicted, and I would dismiss the appeal.
1. Betting and Lotteries Act (Northern Ireland) 1957, s. 13 (1) (a): see post, p. 1124C-D S. 20: post, p. 1124F.