Betting & Gambling: A National Evil

by Unknown

Betting

In the forefront of existing legislation with regard to betting is the great statute known as the Betting Act 1853, 16 & 17 Vict. c. 119. “This most salutary Act,” as Lord Chief Justice Russell called it, was passed when betting by the deposit of ready money was carried on to an enormous extent in houses and offices in towns, and only to a very limited extent in race-course enclosures; and the Attorney-General of the day, in telling the House of Commons that the Bill was not intended to interfere with Tattersall’s, was either unaware how rapidly the ready-money system at the races was growing, or designedly suppressed allusion to it, as an awkward question not absolutely necessary to be faced at the time. The Act crushed the town houses, and the business was transferred to the rings, and the question of the application of the Act to these open-air betting-shops was not decided by the (Criminal) High Court until 1897, in Hawke v. Dunn (1897, 1 Q.B.), when Mr. Justice Hawkins, whose knowledge of the Turf was well known, delivered an unanimous judgment on behalf of the five judges of the Queen’s Bench Division who heard the case, holding the rings to be nothing but betting-houses or places. This meant police raids upon the rings, and the writer was assured at Scotland Yard that the police force would do its duty. But the stoppage of half the race meetings in the country was involved, and the Jockey Club and the bookmakers immediately trumped up a collusive civil case—Powell v. Kempton Park Co., Ltd. (1897, 2 Q.B.)—which could be carried above the (Criminal) High Court. The supposed plaintiff was a clerk in the office of the business men of the Jockey Club. It could not be found that he was either a householder or a ratepayer at the suburban address endorsed on the writ. His only status was obtained by getting a single share in the Kempton Park Co. from one of its directors, a bookmaker, and within a month of the above decision a writ was issued by him under the pretext that he wished to prevent the company permitting the illegalities condemned in Hawke v. Dunn, but for the real purpose of re-trying the question in a form which might give a chance of overthrowing that decision in the Court of Appeal and the House of Lords. In each case the Courts were divided, but the majority of both went against the unanimous judgment of the Criminal Judges, although the collusion and misstatements were of so scandalous a nature that they were denounced by more than one member of the latter tribunal. These cases were long, but for the general public the question of whether the existing legislation of the Act of 1853 ought or ought not to have been held to apply to the rings can be put in a nutshell. All the Courts agreed that the rings must be treated as if they were capable of being “places.” How then could they be ruled out of the Act? Everything turned upon the construction of the language of sections 1 and 3; here it is, abbreviated but not altered: “Any person who, being the owner or occupier of any place, or a person using the same, shall open, keep, or use the same for the purpose of any money being received, etc.; and any person who, being the owner or occupier, shall knowingly and wilfully permit the same to be opened, kept, or used by any other person for the purpose of any money being received, etc.” Everything turns upon the italicised words. Lord Chancellor Halsbury and the majority of the judges took the only view under which it was possible to protect the rings, by holding those italicised words to mean a person having authority over the whole ring, a person analogous to and of the same genus as the owner or occupier, and therefore as not applying to any one of the various bookmakers carrying on business on his own account within it. Three questions which were not asked should have disposed of this view entirely:—

(1) If the any other person is a person analogous to and of the same genus as the owner or occupier, why is he in this second part of section 3 clearly considered to be in the subordinate position of a user by permission? And if this second part of the section does not hit such a person as the bookmaker, what possible person can it be aimed at, not already struck by the first part of the section (other than those having the care or management separately named later on)?

(2) Why did the Act immediately stop the business of the town houses? For, under the construction now given to it, the proprietor had merely to alter his arrangements, announcing that he himself would take no part in the betting, but would get his profit by an entrance fee charged to all comers alike, as the proprietors of the rings do.

(3) Under this construction, what is to prevent houses or rooms being opened in towns by hairdressers, tobacconists, or others, charging an entrance fee to all comers, but the proprietor taking no part in the betting?

Briefly summed up, the House of Lords’ judgment comes to this. The Kempton Park ring owners or occupiers are not responsible, because they do not themselves carry on the business of betting in the ring; and the bookmakers are not responsible, because, although they do this, they are not owners or occupiers, or persons using the same in control of, or authority in the place.

We have pointed out that the Act could have been shown to apply to the bookmakers but for the disgraceful collusion of this case, in which plaintiff and defendants desired the same result; but it is proper to qualify this by saying that the professional men, upon one side at all events, should be looked on as dupes rather than accomplices. Unhappily, it must be added that such a black page of disgrace would not have defaced our Law Reports but for private and influential pressure brought to bear upon certain members of the Courts of such a nature as to have outweighed with them the fearful responsibility of throwing open every public-house in the kingdom—indeed, potentially, every private house—as an authorised betting establishment; for the decisions finding public-houses to be “places” because bookmakers carry on business in them is absolutely contrary to the Powell-Kempton Park judgment, although this is done occasionally by the Courts, most anxious as all of them are to prevent the evils arising from public-house betting; but the shifts to which they are driven to reconcile their decisions with the Kempton judgment are almost as amusing as they are humiliating. Thus the strong arm of the Act of 1853 has been temporarily paralysed, and these peripatetic Monte Carlos all over the kingdom, the rings, have had their lives prolonged for the present.

There are, however, two subordinate sections, 5 and 7, which are of great importance, or rather have become so through the exertions of the National Anti-Gambling League. By judgments obtained in the King’s Bench Division, and confirmed by the Court of Appeal (Lennox v. Stoddart and Davis v. Stoddart, C.A. 1902—2 K.B.), under sections 1 and 3 of the 1853 Act, the deposit of money for betting is illegal, even though not made direct to the house or place of business of the bookmaker. By these judgments it will be seen that all bookmakers advertising from offices in the United Kingdom and receiving deposits (before the issue of the events betted upon) there or elsewhere, directly or indirectly, are keepers of betting-houses, and their advertisements illegal under section 7; and that the newspaper proprietors admitting these advertisements are also offenders under the same section. This has only recently become clear in law, and still awaits application on a large scale. The same remark applies to the operation of section 5, under which, by the Court of Appeal decisions referred to, all such deposits can be reclaimed for the senders by the special statutory right of the Act; in the words of Lord Justice Matthew, as “a penalty, or mulct in the nature of a penalty, for a violation of the terms of the Act of Parliament.” In many cases considerable sums have already been refunded by the bookmakers, but, while any loophole is left open by doubts as to the application of the Act of 1853 to bookmakers ostensibly giving no address in the United Kingdom, but carrying on business across the Channel, there is something to be said for the policy of not pressing the application of sections 5 and 7 before other lines of the campaign against the professional betting system.

Although the destructive judgment in Powell v. Kempton Park reduces the public fear of betting in houses or places other than race-course rings to little more than a popular superstition, provided such places are arranged as indicated above, that fear still prevails, and has consequently brought about a regular system of betting almost anywhere and everywhere out of doors, commonly known as street betting. For many years the association formed to combat the general evil has busied itself, inter alia, in getting County and Municipal authorities to pass bye-laws against this street system of betting, and these are now in force in about 150 areas, including many of the principal cities and counties, but the Acts sanctioning these bye-laws (Counties, sec. 16 Local Government Act 1888; Cities, Towns, etc., sec. 23 Municipal Corporations Act 1882) only permitting a maximum fine of £5, without powers of arrest and search, have been found unequal to the evil, so that the fines are merely looked upon by the bookmakers as a tax on profits; and to the despair of the authorities the effect is merely to enhance the police fines by a small share of the profits of the trade. Wealthy bookmakers employ several underlings, and drive round in a trap at stated intervals to receive their takings, never appearing themselves before the magistrates, but merely supplying the fines to their servants. Others surround the exits of places of business of all kinds at the dinner hour, or even collect deposits at the small houses of the workers, during their absence, from their wives; and numbers of them adopt the subtle plan of bribing foremen and forewomen on the business premises to act as their agents by giving them a commission on the profits. Circulars have been published in the Times, received from bookmakers by foremen in the employ of mercantile firms of first class standing, offering 10 per cent commission to influential employees. Convincing evidence was given before the Select Committee of the House of Lords as to the deteriorating effects of the professional betting system upon the character and work of British artisans, and the information subsequently published by the Moseley Commission strongly confirms this in making comparisons with foreign workmen.