Payne and Others v Bradley

[1961] 2 All ER 36

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Payne and Others
v Bradley

Court:

Judges: Lord Parker CJ
Winn J
Widgery J

Subject References:
Gaming
Lottery
Exemption
Purposes other than "private gain"
Tombola played at club and profits paid into general funds used to meet general expenses of club
Whether profits were applied for purposes other than purposes of "private gain"
Other exemptions

Legislative References:
Betting and Lotteries Act, 1934 (24 & 25 Geo 5 c 58) - s 21, s 22, s 23, s 24
Small Lotteries and Gaming Act, 1956 (4 & 5 Eliz 2 c 45) - s 1, s 4

Hearing date: 15 February 1961
Judgment date: 16 February 1961

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On a number of days in April and May, 1960, the appellants, who were the directors or trustees of a friendly and trade societies' club, held sessions of tombola at the premises of the club. Sets of tickets were sold for 2s 6d, each ticket enabling the holder to take part in session; sales of tickets were not confined to members of the club. The prizes were sums of money, and the proceeds of each session, after payment of prizes, were paid into the general funds used to meet the general expenses of the club and thus to finance the amenities and activities that it provided. Under the rules of the club no surplus was divisible among members individually. The appellants, being charged under s 22(1) of the Betting and Lotteries Act, 1934, with using premises for purposes connected with the conduct of a lottery, contended that the lottery (viz., the tombola sessions) was lawful (by virtue of s 4(1), (3), of the Small Lotteries and Gaming Act, 1956) because the whole of the proceeds (after payment of lawful expenses) were applied "for purposes other than purposes of private gain" within s 4(1)(c). On appeal against conviction,

Held:

Private gain" in s 4(1)(c) of the Small Lotteries and Gaming Act, 1956, referred to private gain to the organisers of the lottery or game or those whom they represented; and the appellants were rightly convicted because the society or the individual members got by means of the tombola sessions a private gain, notwithstanding that the net proceeds were paid into the general funds of the society (see p 40, letter h, post).

Per Curiam: there would have been exemption (by virtue of s 24 of the Betting and Lotteries Act, 1934) if the sale of tickets had been confined to members (see p 39, letter i, to p 40, letter a, post).

Appeal dismissed.

Notes

Section 4(3) of the Small Lotteries and Gaming Act, 1956, which provided the exception on which the appellants relied in the present case, was repealed as from 1 January 1961, by the Betting and Gaming Act, 1960, s 15 and Sch 6, Pt 1. Both s 23 and s 24 of the Betting and Lotteries Act, 1934, are amended by s 23(1)(4), s 29(2) and Sch 5 to, and s 22 is modified by s 21 of, the Act of 1960. The words "purposes other than private gain" have, however, application at the present time as they are used in the saving for entertainments provided by s 20 of the Act of 1960.

As to lawful and unlawful lotteries, see 18 Halsbury's Laws (3rd Edn) 238-248, paras 460-474; and for cases on the subject, see 25 Digest 452-456, 429-449.

For the Betting and Lotteries Act, 1934, s 21, s 22, s 23, s 24, see 10 Halsbury's Statutes (2nd Edn) 801-805.

For the Small Lotteries and Gaming Act, 1956, s 1, s 4, see 36 Halsbury's Laws (2nd Edn) 362, 367.

Case Stated

This was an appeal by way of Case Stated by the stipendiary magistrate and two justice of the peace for the county borough of Huddersfield before whom the appellants were convicted of offences against s 22(1) of the Betting and Lotteries Act, 1934.

On 27 July 1960, informations were preferred by the respondent, David Bradley, against the appellants, Harry Vincent Payne and nineteen other persons that they, on 27 April and 30 April 1960, and on 4 May 7, 14 and 18, 1960, at Huddersfield, in connexion with a lottery promoted in Great Britain known as "tombola" did use premises occupied by them, viz, the main hall of the Huddersfield Friendly and Trade Societies' Club, situated at 9, Northumberland Street, Huddersfield, for purposes connected with the conduct of the lottery, contrary to s 22(1) of the Betting and Lotteries Act, 1934. The justices heard the informations together, with the consent of the parties, on 24 August 1960, and 13 September 1960, and the following facts were found. On the several dates set out in the informations the twenty appellants were either trustees, or by virtue of the rules and an election, directors of the Huddersfield Friendly and Trade Societies' Club, and as such, subject to the powers of general meetings, had full power to superintend and conduct the business of the club. On each date sets of tickets were sold on the club premises for 2s 6d; on weekdays a set consisted of eight tickets and on Saturdays, three tickets. Each ticket entitled the holder to take part in one session of an amusement or entertainment known as tombola on occasions when other entertainment was provided. On each date, sessions of tombola were held in the main hall of the club under the control of servants or agents of the club. On each occasion a substantial number of persons took part in the amusement; on certain dates estimated to be about two hundred.

Tombola was conducted as follows: on each ticket was printed a series of numbers which varied from ticket to ticket. The person in charge of the proceedings drew out numbers from a bag and called out the numbers so drawn. The holder of a ticket on which any such number was printed then crossed it out. The first holder of a ticket who was able in that manner to cross out all the numbers on his ticket was entitled to a prize. Occasionally a prize was given to a person holding a ticket bearing only one line of cancelled numbers. The tombola sessions were not promoted as an incident of any entertainment of the kind referred to in s 23(3) of the Betting and Lotteries Act, 1934. The prizes were sums of money. The sale of tickets was not confined to members of the club. After payment of the prizes the proceeds of the playing of tombola were paid into the general funds of the club and appeared in the profit and loss account out of which the general expenses of the club were met. For the year 1959 such profits were shown in the accounts to be in the region of £900 while the membership fees amounted to £1,059. No certificate or other satisfactory evidence of registration by the local authority under s 1 of the Small Lotteries and Gaming Act, 1956, was produced although a witness stated that, in fact, the society was so registered. Returns under that Act were not made and the club did not purport to operate these sessions of tombola under the exemption of s 1.

It was contended on behalf of the appellants that tombola was a game within the meaning of s 4 of the Small Lotteries and Gaming Act, 1956; the entertainment was promoted for raising money to be applied for purposes other than those of private gain; on all the dates mentioned in the informations the game was played at an entertainment in accordance with the conditions set out in s 4(1) of the Act and the entertainment was exempted under that section: all the proceeds of the payments made by the participants in the game, after making deductions lawfully permitted, were applied for purposes other than those of private gain; "private gain" meant gain for the benefit of people personally and as private individuals and not as members of a properly constituted society, club or similar body of persons in a collective capacity.

It was contended on behalf of the respondent that tombola was a lottery inasmuch as the prizes were awarded by chance and there was no element of skill. Section 21 of the Betting and Lotteries Act, 1934, provided that all lotteries were unlawful, subject to exemptions provided by s 23 and s 24 of that

Act, and s 1 and s 4 of the Small Lotteries and Gaming Act, 1956. The exemption of certain small lotteries prescribed by s 23 of the Betting and Lotteries Act, 1934, did not apply to this case as the entertainment provided was not of the character set out in s 23(3), the net proceeds were not devoted to purposes other than private gain and money prizes were given in the lottery. The exemption of certain private lotteries prescribed by s 24 did not apply because the sale of tickets or chances was not confined to the classes of person referred therein. The exemption of certain small lotteries prescribed by s 1 of the Small Lotteries and Gaming Act, 1956, did not apply inasmuch as the whole of the proceeds of the lottery after making the permitted deductions therefrom was not devoted to purposes other than private gain, no returns to the local authority had been made under s 3 and the appellants did not purport to conduct the lottery in pursuance of that exemption. The exemption of small gaming parties prescribed by s 4(3) of the Betting and Lotteries Act, 1934, did not apply because tombola was not a game as the persons participating did not take any active part; and if it were a game, s 23 was not complied with in that the net proceeds were paid into the general funds of the club. If a purpose were not for public gain it must be for private gain and in this case benefit was conferred on members of the club and not on the public.

The justices were of opinion that tombola as played on the occasions named in the informations was a game of pure chance with no element of skill and it was therefore a lottery. Section 23 and s 24 of the Betting and Lotteries Act, 1934, and s 1 of the Small Lotteries and Gaming Act, 1956, did not prescribe exemption from s 22 of the former Act, as was conceded by the appellants. The fact that tombola was a lottery did not prevent it from being a game or the holding of session from being a gaming party. The interpretation of the words "private gain" should determine whether the game was exempt by either s 1 or s 4 of the Small Lotteries and Gaming Act, 1956. The justices did not accept that a purpose which was not for public gain was necessarily for private gain, but in this case the payments made by the players were not applied for purposes other than those of private gain because the profits were paid into the general funds of the club; the total for 1959 of about £900 appeared in the profit and loss account and was used to meet the general expenses of the club. Although r 3 of the club rules provided that no surplus should be divisible among the members individually, the profits from the playing of tombola were used to finance the amenities and social activities of the club, shared by club members, and this was a private gain.