Uncertain stakes
THE LAW R. A. CLINE
Going to law is generally recognised to be a bit of a gamble, but never more so than when the subject of the lawsuit is gambling. Not that there is any doubt about the prospects of a claim to recover a gambling debt in the civil courts. They are nil. The law has always re- garded the quarrels of people at the gaming tables or in the cockpit or at the racecourse as none of its business; debts contracted in such circumstances have always been treated as unen- forceable in the courts of justice.
Just why a nation with a natural flair for turning any situation, be it a crisis, an election, or the investment of money, into an oppor- tunity for a gamble, should display so am- bivalent an attitude to its liveliest activity, can only be fully explained by a social historian. The lawyer gets the dirty end of the stick,.
as he always does where there is an unresolved moral dilemma in which the nation as a whole finds itself trapped. The judges, the police and legal advisers generally have the murky task of elucidating legislation which reflects the national dilemma, and as the Court of Appeal pointed out forcefully last month, they have not done a particularly pretty job. The schizo- phrenia of the legislators does not make judicial interpretation the easiest of tasks.
Take the Betting, Gaming and Lotteries Act 1963, which consolidates the previous gambling laws. Part II of this statute deals with 'gaming.' This is defined as 'playing a game of chance for winnings in money or money's worth,' and a game of chance includes a game - of chance and skill combined, a definition which might embrace many an innocent game of, pontoon in the family circle. Now to Sec- tion 32, with its wagging finger of warning: 'Gaming shall be lawful if, but only if, it is conducted in accordance with the following conditions,' and there follow the provisions which have given rise to a ceaseless cat-and- mouse game between the courts and the clubs.
The first condition is that 'the chances in the game are equally favourable to all the players.' The second is slightly different: 'the gaming must be so conducted that the chances therein are equally favourable to all the players.' Then there are provisions prohibiting the payment of money for taking part. The object of the Act was to take the high profits out of gaming in clubs and elsewhere. But life is not as simple as that. The clubs consulted the lawyers as to what they could and could not dir. Lord Penning called their dodges 'devices,' but is this really fair? Either the law prohibits or it does not, and it is for the courts to say loud and clear what is not permissible, and if it fails to do so, even gaming club pro- prietors are entitled to pursue their smoky nocturnal ways undisturbed.
What the clubs did was this: first they levied a toll of sixpence on the stakes of roulette_ where the roulette wheel had no zero. Then every player was charged ten shillings for every twenty minutes. But this was pronounced out of court. Then the promoters put a zero into the roulette wheel and they got their- profits from holding the bank. But on legal advice they offered the bank every half-hour. to any player who let like taking it. It. rzaz genuine offer but the trouble was that few players took it up, no more in fact than two in a period of Months. So the police prosecuted them, contending that the chances were not equally favourable to all the players. The magistrates convicted; the Divisional Court thought otherwise and quashed the convictions and the matter went to the House of Lords.
Their Lordships held that the zero consti- tuted roulette 'inherently and naturally' a game of unequal chances. However genuine the offer, the reluctance of the players to accept more than twice in five and a half -months showed that the gaming was so conducted that the chances were unequal. The promoters were once again defeated. They had previously suf- fered a similar defeat because when offering the bank they had called on the acceptor to show he could meet any financial commitments should the bank lose. In this subsequent case they had called for no such evidence, but the judicial dice came down against them.
The story did not end there. Mr Raymond Blackburn's remarkable success in January in persuading the Court of Appeal to reprimand the Police Commissioner for failing to prose- cute casinos at least defined the judicial view of the 1963 Act. The courts are going to stamp out high-profit gaming because gaming and gangsterism march hand in hand. But there are risks in out-and-out anti-gaming crusades. Not easily distinguishable, except in pounds, shilling& and pence,. from- the: the .big-time gambling rackets are the small-time amuse- ments of a large number of 'honest citizens,' who on analysis are not free from avarice in their gaming even though they refrain from violence and other forms of crime. The crusade may aim at Al Capone but as often as not it strikes down Honest Joe.
Thus it comes about that the 1963 Act has somewhat furtively to slip in a section exempt- ing pool betting (the Court of Appeal has hap- pily no call to frown on those big profits, those games of skill and chance). And last week the House of Lords delivered themselves of a judgment which will protect the humbler garners who looked, for a moment, in danger. Members of the public invited to play bingo free of any charge or obligation to buy drinks and to play the game for prizes are not gaming. So far, so good. But the new Gaming Bill will (illadvertently, of course) catch bingo, unless Mr Callaghan's promised amendments are care- fully formulated. You cannot make clear gaming laws unless you have a clear attitude to gaming. No wonder the police dithered for so long before prosecuting the casinos; no wonder, too, that so many lawsuits about gambling reach the higher courts before even a temporary certainty in the law can be achieved. It is right to stamp out racketeering; but it is quite absurd to seek to prohibit so-called gaming by definitions which hit the innocent as well as the criminal. If crime and gangsterism have penetrated any particular casino or club, then the law should effectively control or destroy the establishment which harbours the crime. Let us hope the new Bill can. The law has shown itself quite incap- able of stopping the activity which has attracted the criminals, for the simple reason that gaming is ian activity for which the English have an un- quenchable enthusiasm. The law can protect us from gangsters; it cannot protect us from our- selves if we cannot make up our minds.
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