THE GREAT BETTING CASE.

Evening Star, Issue 10398, 20 August 1897, Page 1

THE GREAT BETTING CASE.

Judgment in the important case of Powell v. the Ivempton Park Racecourse Company was delivered on- July 6, The arguments took place on June 16 and 17 before the full Court of Appeal, when the Court took time to consider their judgment. The action was brought for the avowed purpose of reviewing the decision of the Divisional Court,in the noted case of Hawke v. Dunn, in which no appeal lay, as it was a decision in a criminal cause or matter reviewed by the Court of Appeal and the House of Lords. The appeal was brought by the defendants front the judgment of the Lord Chief Justice of England, and raised the question whether the reserved enclosure commonly called “ TattersalTs enclosure ” at Kempton Park Racecourse’ was “a ' place” within the Betting Houses Act, 1853, and, if it were, whether it was “used” by the bookmakers within the meaning of that Act. It may be here mentioned, as giving direct interest to the case, that the New Zealand statute for the suppression of gambling—the Gaming and Lotteries Act, 1881—is, in rdgard to betting, almost identical in wording with the Imperial Act, so that the law may be taken as precisely the same. The plaintiff, by his statement of claim, sought for an injunction to restrain bhe defendant company, their agents and servants, from opening or keeping the enclosure known as Tattersall’s enclosure for persons using the enclosure for the purposes of betting with persons resorting thereto, or for the purpose of money beih<* received by such persons using the same as deposits made on, horse races. He further prayed that the’defendants should be restrained from otherwise carrying on their business in a manner contrary to the provisions of the Betting House Act, 1853, and of their memorandum of association, and from expending moneysof the company in such illegal business. The plaintiff, it may be noted, was a shareholder in the company, which was incorporated, inter alia y for the purpose of carrying on the business of a racecourse company and conducting race meetings under the rules of the Jockey Club and the National HuntCommittee, in accordance with the provisions of their memorandum of association. By their defence the company contended that “Tattersall’s enclosure” was not a “ place ” within the meaning of the Act. They also denied that the enclosure was opened or kept for the purposes alleged, and asserted that bookmakers who frequented it were not “persons using the same” within the meaning of the Act. They admitted that a considerable amount of betting was carried on by bookmakers in the enclosure, but under such circumstances that it was not illegal, and they pointed out that at the time of the passing of the Act similar betting had for many years previously been habitually” carried on in racecourse enclosures, and had since been carried on, until recently, without the intervention of the authorities. The Lord Chief Justice, considering himself to be bound by the case of Hawke v. Dunn, gave judgment for the plaintiff, which was reversed by the Court of Appeal, who allowed the appeal with costs, Lord Justice Rigby alone dissenting.

The Master of the Tolls (Lord Esher) read a written judgment,, in which he . reviewed all the circumstances leading up to the appeal. The facts of the case, he said, were that the company were owners of the Kempton Park Racecourse, including certain enclosures. One of these was known as Tattersall’s Ring, to which anyone had access on payment of one sovereign. No partoftheenclosurewasreserved by any one for his own purpose. Many persons paid for admission, including several prominent betting men called bookmakers, and they were admitted on the same terms as anyone else. The bookmakers shouted the odds against every horse in every race, and were prepared to bet with anyone, and for a certain time they accepted such odds, and, in case of the horse winning, were prepared to pay. It could not be said that the bookmaker did not go there for the purpose of betting, nor that he did not bet as a matter of business in the way described. The business of each bookmaker was independent of the others : no one exercised in this enclosure any exclusive rights to it as a user. It was on these 'facts, said Lord Esher, that the plaintiff asked for the injunction he claimed against the defendants, and the Court had to consider whether the use by the bookmakers of the enclosure for betting purposes was legal or not. This raised three questionsr-firstly : Was the enclosure such a “place” as could come within the meaning of the statutes 1 If yes, then secondly; Was the enclosure so used as to make it “a place” illegally used? If it were used as such, the third question arose; Did the company illegally use it, or knowingly and willingly permit it to be used ? If this proposition were answered against the company the injunction asked for should be granted. If any one of them went in favor of the company, then no injunction could lie. In order to determine the questions it was necessary, His Lordship declared, to ascertain what was the true construction of the statute. They had to consider the preamble to discover the purpose for which the Act was passed, and then the instructions found in the Act itself. The Act was for the suppression of betting-houses, and allowing the police to break in and arrest all such people who should be found in a “ house, office, or place ” where the business of a betting-house or betting office was carried on. Now, they had to .inquire what the mischief was that was indicated m the preamble to the Act and the description of the illegality, and the interpretation to. be put on. the word “place.” The word, though very wide, must' have some limitation, and the application must reasonably be to a place capable of being used as if it were a person’s house, room, or office. As to the second question whether any person did use it as if it were a house, room, or office—the person to create such a place must have a right of user peculiar to himself. _ A “ place ” necessarily implied some exclusive right in using. The facts in this case, His Lordship went on to say, seemed to show that not one of the bookmakers claimed to use or did use any part of tjie enclosure in such a way, go long, therefore, as enclosures on racecourses were used only as this enclosure was used, in his opinion they could not be said to be “places” used subject to the provisions and penalties of the statute. No one could hold that the enclosure was illegally used contrary to the statute, therefore the. whole case must be construed subject to the rule he had laid down. It followed therefore that he did not agree with the interpretation put upon the Act in. the case of. v. Dunn. In hisopinion the Act \pas- levied '' not

against betting on racecourses, but was meant to aim at the keeping of “a place” / for the purposes of bettiug. Lord Justices Lindley, Lopes, and Smith agreed with this judgment, but Lord Justice Rigby dissented, while Lord Justice Chitty, in expressing concurrence, made a few pointed remarks. He said that the question was important, and was a mixed question of fact and of law. The Act, he affirmed, deliberately refrained from making betting illegal ; but there were special prohibitions. The word “ place ” was meant to be some particular place within the meaning applied to it. It the plaintiff were right, the police could raid the enclosure at any time. It was j impossible to think that the Act, which by the preamble was intended to apply to some particular form of gambling, was operative in this case. If the meaning which was attempted to be put on the word “ place ” were right, then since 1853 “the authorities must “ have been asleep, the police somnolent, “and the informer supine. The Act was “ drawn almost as if to invite a difference “of judicial opinions. The appeal should “ be allowed.”