Summary

A bookmaker whose business was located abroad was not entitled to solicit custom within the United Kingdom by broadcasting advertisements on Teletext. Such an advertisement was an "advertisement or other document" for the purposes of s.9(1)(b) Betting and Gaming Duties Act 1981. * Leave to appeal to the House of Lords refused.

Facts

Appeal by the Commissioners of Customs & Excise against the decision of Lightman J by which he granted the claimant ('VCI'), an off-shore bookmaker, a declaration that it could lawfully obtain custom from within the UK by broadcasting advertisements on Teletext, a service run by the second defendant, and Skytext, collectively referred to as "Teletext". The issue was whether the proposed broadcasts by VCI, which would invite and otherwise relate to the making of bets, constituted or would give rise to the issue, circulation or distribution of "an advertisement or other document", contrary to s.9 Betting and Gaming Duties Act 1981. VCI carried on an off-shore credit betting business serving non-UK residents. It wished to extend its business to UK residents and for this purpose proposed to place advertisements on Teletext. The advertisements would appear on screen as Teletext pages, which were generated by the transmission of information created by VCI's computers and transmitted and submitted electronically, via Teletext's central editing system and remote databases, to the relevant broadcasters. The statutory policy of the 1981 Act was to prohibit an off-shore bookmaker from issuing, circulating or distributing "advertisements or other documents" within the UK, so as to prevent loss of revenue from the general betting duty imposed by the Act upon bookmakers based in the UK. Lightman J held that, on the facts, no offence was committed, since "advertisements" in s.9(1)(b) of the Act were limited to advertisements in documentary form, and that the means by which the advertisements broadcast on Teletext were made available for viewing did not involve the issue, circulation or distribution of any document. The judge considered that advances in modern technology had revealed a lacuna in the Act, which it was not permissible for the court to fill by "updating" the statutory language, and as to which it was for Parliament to decide whether, and if so by what means, to fill the lacuna (cf s.42 Gaming Act 1968).

Held

The judge's construction took insufficient account of the technological advances which had taken place since s.9(1)(b) of the Act was first enacted by the Finance Act 1952. Parliament could not have contemplated, in 1952, the means by which advertisements intended to be seen or read could now be created, circulated and distributed electronically. Although the dissemination of VCI's advertisements in that manner did not involve the issue, circulation or distribution of a document in the normal meaning of those words, s.9(1)(b) was an "ongoing" statutory provision, which should be treated as "always speaking". Bennion's "Statutory Interpretation" 3rd Edition section 288 (page 686) considered. R v Westminster City Council, ex parte A (1997) 1 CCLR 85, R v Robert Mathew Ireland (1997) QB 114 and Martin Fitzpatrick v Sterling Housing Association Ltd (1999) 3 WLR 1113 approved. The court was satisfied that VCI's advertisements were of a sort which fell squarely within the mischief at which that s.9(1)(b) of the Act was aimed.

Appeal allowed.

* The House of Lords refused an application by Victor Chandler International for leave to appeal in this case on 29 June 2000.