PROCEDURE.
Procedure.
We now come to treat of the procedure whereby the laws against gaming and betting houses can be enforced. It will be observed that it differs in some important respects from the ordinary procedure in criminal cases, in being more drastic and to a great extent less considerate to the liberty of the subject owing to the great difficulty of detecting the offences and the facility with which the law might be evaded if ordinary forms had to be observed.
The procedure is slightly different in the case of gaming and betting houses, so they must be treated separately.
Gaming houses.
I. As to gaming houses, by 25 George II., c. 36, ss. 5 and 6, it was provided that if any two inhabitants of a parish should give notice to a constable of any person keeping a gaming house, the constable should take such persons before a justice of the peace; that the justice should, on the sworn information of such persons, bind them over to prosecute at the Assizes or Sessions, and issue a warrant for the arrest of the person accused and bind him over to answer any indictment that might be found against him. It seems that the section leaves the magistrate no discretion as to granting a warrant[[399]]; but as it only applies to proceedings preliminary to indictments it is, in practice, superseded by the procedure prescribed in the more modern Statutes. This procedure is different according as the house is situated in the Metropolis or out of that district. |In the Metropolis.| In the Metropolis, by 2 & 3 Vict. c. 47, section 48, power was given to the Commissioners of the Police Force, on the report of any superintendent, that there were good grounds for believing that any house within the district was used as a common gaming house, and on two witnesses making oath before a magistrate, to empower the superintendent and other constables to enter the house, arrest all persons found therein,[[400]] and destroy all tables, instruments of gaming, money, and securities for money. By 8 & 9 Vict., c. 109, section 6, the Commissioners are invested with the same powers, except that the necessity of two witnesses making oath before a magistrate is dispensed with; and the power to seize (and not destroy) instruments of gaming is given.
This latter section does not empower Metropolitan magistrates to issue such warrant as the Betting House Act does.
In Ireland.
By section 24 of the latter Act, Metropolis in Ireland means Dublin.
By section 7, special power is conferred on such superintendent or constables to search the whole house where he shall suspect there are instruments of gaming concealed, and any person found therein,[[400]] and to seize all tables and instruments of gaming which he shall so find.
By section 8, magistrates before whom persons are brought, having been arrested in a gaming house, may order all such tables and instruments of gaming to be destroyed.
Out of the Metropolis.
In the case of houses out of the Metropolis, justices of the peace may, on information on oath that there is reason to suspect any house is used as a gaming house, issue a warrant in the form given in the schedule to the Act to empower officers to enter such house by force, and arrest all persons found therein. This section does not empower constables to seize or destroy instruments of gaming. |Form of warrant.| An important point to notice about the form of the warrant is that it is directed only against a particular house, the individuals who may be arrested need not be named or described. This is an important departure from ordinary procedure, as generally a warrant for an arrest is bad if the name of the person to be arrested or some description of him do not appear on the face of the warrant, as was decided in the “general warrant” cases in George III.’s reign.
By section 5 it is provided that it shall not be necessary in support of any information, for keeping a gaming house, to prove that persons found playing therein were playing for money or stakes.[[401]]
The power of ordering the destruction of instruments of gaming conferred by section 8 seems to apply out of the Metropolis. The words are “warrant or order.”
It does not appear that police magistrates in the Metropolis have the power of issuing warrants in the form above described, as the section expressly excludes the metropolitan district.
N.B.—In any questions arising under this Act, reference should be made to the cases which are noted under the corresponding portions of the Betting House Act, as the wording of the two statutes is in many cases similar.
Evidence.
There are also important provisions in 17 & 18 Vict., c. 38, with respect to the power of a magistrate to compel witnesses to give evidence, under section 5 and section 6. All persons apprehended under the powers contained in section 3 and section 6 of 8 & 9 Vict., c. 109, may be required to give evidence touching any unlawful gambling or obstruction of officers in the house, notwithstanding that such evidence may tend to criminate the witness. Such person refusing to be sworn may be dealt with as any ordinary witness so refusing. But every such person who has made full discovery of all the facts he knows is entitled to a certificate from the justices which frees him from criminal proceedings in respect of matters on which he has been examined.
Levying and application of penalties.
By section 7 penalties and costs may be levied by distress, and by section 8 half the penalty is to be paid in aid of the poor-rate of the parish in which the offence is committed, and half to the person laying the information.
In Wray v. Ellis[[402]] a question arose as to whether this section applied to penalties paid in the Metropolis. By the Statute 2 & 3 Vict., c. 71, section 47, it is provided that all fines paid in London Police Courts shall be paid to the Receiver of Police. The question was whether the enactment was superseded by section 8 of 17 & 18 Vict., c. 38. The Court held that it was not; and that in the latter section an implied exception was contained in the case of penalties paid in the Metropolis, and that therefore the Receiver was entitled.
Neglect to prosecute.
By section 9, if the person who shall have laid the information neglects to prosecute, the justices may authorise some other person to proceed.
Appeal.
Any person convicted summarily under this Act may appeal to the Quarter Sessions on entering into recognisances and finding sureties within 48 hours of his conviction.
No certiorari.
By section 11 no information under the Act is to be removed by certiorari into the Queen’s Bench.
Action against officers.
In the case of actions brought against officers for any trespass or other wrongful proceeding done or committed in the execution of the Act, it is provided (section 13) that no action shall be brought if sufficient tender of amends shall have been made before action brought, and by section 14 no action or other proceeding shall be brought, unless one month’s notice in writing shall have been given to the intended defendant, nor unless the action shall have been commenced within three months of the act or omission complained of.
In Blake v. Beach[[403]] it was contended for the defendant that by section 14 a month’s notice of the information ought to have been given to him, but this point was abandoned by Counsel as untenable, when the case came before the Divisional Court; and was also said by the Court to have been “founded on an obvious mistake!”
Vexatious indictments.
Keeping a gambling house is one of the offences mentioned in the Vexatious Indictments Act, 22 & 23 Vict., c. 17, which by section 1 provides that no bill of indictment for any of the offences named shall be presented to the Grand Jury unless the prosecutor or person preferring such indictment has been bound by recognisance to prosecute or give evidence; though, by section 2, if the justices decline to commit for trial, prosecutors may require them to bind him over to prosecute.
Betting houses.
The procedure in the case of betting houses is to a certain extent similar to that in the case of gaming houses, except that the power of magistrates to issue a warrant in the form already described is not limited to places out of the metropolitan district.
By section 11 of 16 & 17 Vict., c. 119, justices of the peace are empowered, on information on oath that any house suspected of being used as a betting house, |Search warrant.| to issue a warrant authorising the forcible entry into any such house, and the arrest and searching of all persons found therein, and also the seizure of all lists and cards and other documents relating to racing or betting found in such house. Such warrant may be in the form given in the schedule to 8 & 9 Vict., c. 109.
In Anderson v. Hume[[404]] it was decided (1) that this section empowers the search of licensed houses as well as others, although they are subject in some respects to special regulations; (2) that the power to arrest persons found therein is not confined to persons found engaged in gaming.
In Blake v. Beach[[405]] a warrant was issued under section 11 of this Act for the search of a house suspected, as was stated in the warrant, of being used as a common gaming house within 8 & 9 Vict., c. 109. Under this warrant defendant and other persons found therein were arrested. Defendant was afterwards charged under section 3 of 16 & 17 Vict., c. 119, with keeping a betting house. Ample evidence was given that defendant was manager of the place, and that it was used for betting purposes, but this charge was made without any fresh information being laid against defendant. |Whether fresh information necessary.| It was objected on his behalf that as the information on which the warrant was granted was laid under 8 & 9 Vict., c. 109, a fresh information ought to have been issued before he could be charged under the Statute of 16 & 17 Vict., c. 119.
The Court differed, Field, J., holding that no fresh information was necessary. In this case a specific charge was made against the accused sufficient to give the magistrates jurisdiction. The information provided for by section 11 took away the necessity of any further information. Further, according to the current of modern authority, when a man is before a magistrate who has jurisdiction as to time and place, no further information is necessary before bringing any fresh charge against him, though it might be proper to adjourn the hearing.
The rest of the Court, Cleasby and Grove, JJ., differed. In the ordinary course a charge is preceded by information or summons. In this case the defendant was brought up on a charge different from that contained in the information. In a penal matter the charge ought to be comprised within the information. There is nothing in section 11 to dispense with the regular information or summons; it only enables persons to be brought before the magistrates so as to know who is to be charged. The conviction was therefore quashed.[[406]]
The information may be laid before one justice only.[[407]]
Where an information under the Betting House Act charged defendant with having kept a house for betting purposes on the 5th October “and divers other days.” The evidence proved the offence alleged on the 8th of November only. Held, that under section 9 of 11 & 12 Vict., c. 113, the variance was immaterial.[[408]]
For an instance in which a warrant was, under this section, issued in the Metropolis, see Clarke v. Wright (quoted above).
Powers of Commissioners of Police in Metropolis.
Section 12 confers the same powers on the Commissioners of Police in the Metropolis, on the report in writing of any superintendent, to authorise such superintendent, with other constables, to enter suspected betting houses, as is contained in the Gaming House Act; to take into custody all persons found therein,[[409]] and to seize all lists, cards, or other documents relating to racing or betting.
The Act also contains provisions similar to those of the Gaming House Act, with respect to appeals to Quarter Sessions, certiorari, and limitations of action (see above, p. 199).