A district judge recently considered issues around the criminal liability of a betting operator where a child played a fixed odds betting terminal without challenge. Philip Kolvin QC reports.
If a child or young person walks into a betting office and plays a fixed odds betting terminal without challenge, is the operator criminally liable? Or does the prosecution also have to prove that the operator knew or should have known that the player was underage? In other words, is the offence one of strict liability? This question was answered on a trial of a preliminary issue by District Judge Brailsford in Blackpool Council v Stan James (Abingdon) Limited on 1st March 2016.
The facts for the purposes of the preliminary issue were that the council carried out a test purchase using 15 and 16 year olds who were able to enter and play the fixed odds betting terminals without being challenged by the defendant’s staff, who were unaware that the children were in the shop or that they were playing the machines.
Section 46 (1) of the Gambling Act 2005 provides:
“A person commits an offence if he invites, causes or permits a child or young person to gamble.”
The Act provides a “due diligence” defence in section 63. The defence operates where the defendant proves that he took all reasonable steps to determine the individual’s age and reasonably believed that the person was not a child or young person (as the case may be). Of course if the defendant does not notice the child or young person in the shop, he cannot form any kind of belief, and so cannot avail himself of the defence.
The council argued that the section 46 offence is one of strict liability. I.e. once (a) the fact of the gambling and (b) the age of the child/young person concerned are proved, the offence is made out. Nothing, they submitted, needs to be proved about the mens rea of the defendant; in whatever manner a child or young person is enabled (“permitted”) to gamble, the licensee must show that he took all reasonable steps to determine the individual’s age and that he reasonably believed that the individual was not a child or young person. If he cannot, said the council, he is guilty of the offence.
The District Judge held that it is beyond dispute that the fundamental objective of this legislation is to protect those under 18 from being harmed by gambling; the potential harm which can flow is well recorded and understood, and the very reason why such organisations as Gamblers Anonymous need to exist within our society. The Gambling Act imposes an obligation on those whose business is derived from gambling and the provision of facilities to gamble, that obligation being to identify, challenge and avoid underage people being able to gamble. All forms and methods of gambling which are prohibited to the under-18s are treated similarly, and the responsibility is the same whether monies are handed over a counter or inserted into a gambling machine. The District Judge quoted the prosecution’s skeleton argument:
“[if children] are permitted to walk into a high street betting office and gamble by any means, Parliament has provided that the operator can escape criminal liability only if he has taken the steps and actively formed the belief required by s63.”
The defence case was that “permit” in section 46 means that it needs to be shown that the defendant was aware of what was going on. They argued that the authorities show that (a) the word “permit” should be given its natural meaning and (b) that that meaning is, and should be, “to authorise or to consent to something”. And so they submitted that the person “consenting” or “authorising” must have some knowledge for that authorisation or consent to be granted.
The case therefore boiled down to the correct meaning of the word “permit” in the context of section 46. It was common ground that there is no statutory definition, but there are many cases where meaning of the word has needed to be decided as a preliminary step to deciding whether or not an offence is made out to the necessary degree. Lord Hobhouse in the case of Vehicle Inspectorate v Nuttall  1 WLR 629 said (p639E):
“The word “permit”, like very many other words, is capable of a range of meanings – from “authorise” to “fail to prevent”. In any given situation it has to take its meaning from its context.
The council argued that in this case it means “fail to prevent”, not “knowingly permit”. They cited a number of reasons to support that proposition.
1. The Act is designed to protect children and young people.
2. The Act involves a matter of social concern.
3. The Act creates an offence which can be committed by any one of three actions – “inviting”, “causing” or “permitting”; those are disjunctive terms. “Permits” must be construed as adding something to the other verbs.
4. The statutory defence in s63 provides a defence for the diligent operator.
5. The Act is a regulatory one.
The District Judge expressed some key principles in approaching the construction of the word “permit”:
1. In cases where Parliament has not made it clear that strict liability is intended, the courts, in construing criminal legislation, start from the presumption that Parliament did not intend to punish a blameless individual, and therefore that words importing mens rea must be read into the statute – a presumption which was “powerfully re-asserted” (per Blackstone’s Criminal Practice) in CPS v M  EWCA Crim 2615 (following a line of cases including B (A Minor) v DPP  2 AC 428, and Re. K  1 AC 462.
2. On the other hand, strict liability is often applied to a so-called class of quasi-criminal offences, those referred to by Wright J in Sherras v De Rutzen  1QB 918 as “acts which are not criminal in the real sense but which are prohibited, by a penalty, in the public interest.”
3. The fact that the likely penalty is pecuniary is more compatible with the imposition of strict liability (Customs and Excise Commissioners, ex parte Claus (1987) 86 Cr App R 189), regardless of the level of financial penalty which can be imposed; this is not, however, an absolute principle, since some offences bearing a heavy penalty, and even in theory a penalty of imprisonment, attract strict liability. Allied to this is the issue of mode of trial (or, now, allocation); where, as in Claus, the offence is triable only summarily, strict liability will be more readily inferred than if the offence were triable either way or on indictment.
4. In regulatory offences, Courts continue to give weight to the nature of the social danger involved, the limited applicability and reach of the legislation as regulating a particular trade or business, and the exigencies of successful enforcement.
5. In general, such words as “permitting” convey the need to prove mens rea (Sweet v Parsley [1970 AC 132] and Reynolds v GH Austin and Sons Ltd  2 KB 135), although on some occasions they have been held not to do so.
6. Where a statutory due-diligence or no-negligence defence is provided in relation to a prohibition otherwise apparently cast in absolute terms, the courts are likely to hold that the offence is, the statutory defence apart, one of strict liability (Wings Ltd v Ellis  AC 272; Kirkland v Robinson (1987) JP 377; Bradish (1990) 1 QB 981; Harrow London Borough Council v Shah  3 All ER 302).
The District Judge found the Harrow case to be particularly persuasive. There, National Lottery ticket sellers were convicted for selling a ticket to a minor. In considering whether the offence was one of strict liability, Mitchell J stated:
“The legislation under consideration is, in my judgment, an excellent example of the sort of legislation contemplated by this proposition. That strict liability attaches to this offence will unquestionably encourage greater vigilance in preventing the commission of the prohibited act. The existence of this quasi-criminal offence obviously imposes a very considerable burden upon honest, decent and law-abiding shopkeepers such as the defendants. No sort of stigma attaches to their offence, having regard to the circumstances, but there is a price to pay if their vigilance, or that of anyone selling these tickets on their behalf, slips even to the extent that mistakenly and in good faith a lottery ticket is sold to a youngster under 16”
The District Judge found the Harrow case to be of the greatest similarity to the instant case, involving many of the same issues of social concern, regulation, protection of minors, and even – on its facts – coming close to the s63 defence issues which are referred to above.
The District Judge concluded:
“I have considered the issues very carefully. I have sought to analyse and consider what definition should be given to the word “permit” in circumstances such as these. I am of the clear view that “permit”, here, means “fail to prevent”, not importing any other concepts of “knowingly”, “intentionally”, “recklessly” or the like. Finding the matter to be a strict liability offence does not deprive the Defendant of the opportunity to deny, and to present its case; strict liability is not, without more, guilt. But, on the evidence, arguments and submissions – for which, once again, I express my gratitude to those concerned – I am wholly satisfied that this offence is indeed one of strict liability. Whether the Prosecution can make its case, of course, is an entirely separate issue."
The judgment is of persuasive authority only, although it is fair to say that the reasoning was detailed and thorough. The prosecution interpretation of the criminal liabilities arising under section 46 will throw a significant onus on gambling operators to ensure that underage gamblers are not inadvertently admitted. Put shortly, if a child slips in unnoticed and gambles without challenge, the offence is complete.