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MIONTUAIRISC NA FINNEACHTA(Minutes of Evidence)Dé Máirt, Eanair 22, 1929.(Tuesday, January 22, 1929.)The Joint Committee met at 11 a.m.
Mr. George P. Cussen, Senior Justice of the District Court, called and examined.The following memorandum of the evidence to be tendered on behalf of Mr. Cussen was submitted:— 216. Betting Act, 1926. With reference to the question of amending the law relating to the business of book-making, I desire to say if the Act of 1926 is to be regarded as a Statue to secure Revenue, I have only one suggestion to make, and that is: In the interest both of the public and of Revenue the penalties should be reduced to a reasonable amount. I am quite satisfied that moderate penalties would mean more Revenue. It seems absurd that the Justices should be obliged to inflict a penalty for an offence, which is frequently a minor one, of not less than £500, in the case of an offender whose total worldly possessions do not amount to over £100. We have only power of mitigation to one quarter. And it is in my opinion, founded on what I have observed in our Court, a very grave reflection on our legal system, that in default of payment by a defendant, who obviously cannot pay, we should be obliged to sign warrants committing the person—man or woman— (regardless of age if over 16) to prison— not for a definite period but during the will of the Revenue Commissioners— that is, if they so will, for life. I can, if the Committee desire, give instances of specific cases. As far back as 1879 (42 & 43 Vic., Cap. 49, Sec. 53, Sub.-sec. 2) the law in this respect was altered, and this drastic power of keeping a citizen in jail at the wish of the Revenue Authorities for non-payment of a heavy penalty was abolished as regards England but not as regards Ireland. The Act provides that where the penalty exceeds £50 imprisonment may exceed three months but shall not exceed six months. Apart from the question of Revenue, and after consultation with my colleagues, the following remarks and suggestions occur to me: (1) The applications for bookmakers’ Licences should be made in open Court to a Justice on a date named by the Justice or his Chief Clerk. Notice of the intended application and of the date fixed for hearing should be given by the bookmaker by advertisement in the Press. I suggest it is not desirable to continue the procedure obliging the Superintendents to determine whether a particular person should or should not receive a Licence, or whether particular premises are—or are not—suitable. First, because this casts a judicial determination as to character and suitability on the Superintendent; second, because on appeal the defendant comes before the Justice as one already held to be unfit to hold the Licence, or as applying for premises already held not to be suitable; and third, because I consider the parishioners, owners of adjacent property in the district, and the owners of the premises should be entitled to object. The question of the sufficiency of such objections should not be determined by the Superintendent. And there are other reasons against a continuance of the existing procedure. I may mention applications for Club Licences are made to a Justice. There should be an appeal from the decision of the Justice either to the Circuit Judge or by Case stated on a question of law to the High Court. (2) I suggest an amendment of Sections 4 and 8 of the Act of 1926. Some of the grounds of objection given in Section 8 as grounds for refusal of certificate on the question of suitability of premises would appear to be objections on the ground of character. I also suggest that any person having an interest in the premises, or in adjoining premises, should be entitled to object on the ground that the granting of the Licence would reduce the value of the premises in which that person has an interest. The onus of proof of the facts alleged should, of course, lie on the objector And I suggest a parishioner as well as the Gárdaí should be entitled to object on any of the grounds given in Sections 4 and 8. (3) I do not consider “list” betting should be made illegal. This class of betting is, however, one of the causes of “loitering.” Possibly the abuse might be prevented by an amendment of Section 15, making it illegal to display on the premises lists showing the prices offered, and also making it illegal to keep newspapers on the premises for the use of the public. (4) Loitering would also be prevented by a provision prohibiting payment immediately after a race has taken place. I suggest a proviso that payment should not be made until the day after the race, and not during hours when races are being run. (5) To discourage betting by those who cannot afford it, I am in favour of a provision making it illegal to accept a bet for less, say, than 2/6, and to accept any bet from a child under 16. (6) There does not seem to be any necessity for an Excise penalty for betting on unlicensed premises. That offence is effectively dealt with by the Gaming Acts. (7) As far as we can recollect, there has not been any prosecution for Street Betting during the past two years. It would, therefore, appear that the Act of 1926 has ended this abuse. Too drastic limitation of the number of premises licensed for betting would undoubtedly cause a revival of Street Betting. (8) There have been very few cases since the Act passed, where in the Children’s Court, children were found to have committed theft for the purposes of betting. In three of four cases boys who were found to have stolen money when asked what happened the money, said they used portion of it to make bets. I, however, adhere to the view that it should be made an offence to take bets from persons under 16. (9) In any Act that may be passed, it would seem desirable to define the meaning of “Business of Bookmaking.” The only definition I know of is that appearing in the British Finance Act of 1926, 16 & 17 Geo. V., Cap. 22, Sec. 18 (1). That Act does not, of course, operate in Saorstát Eireann. 217. Witness.—The first point that I refer to in my statement is the question of the desirability of leaving these very high penalties in existence for what are described as Excise penalties in the Betting Act. All through the Act, the penalties are described as Excise penalties. The meaning of an Excise penalty is inter alia that if the money is not paid the person who is directed to pay will remain in prison until the Revenue Commissioners choose to release him, and that may be, should they so desire and should he be unable to pay, for the rest of his life. I cannot help thinking it is a very remarkable thing that although in England the law was amended as far back as 1879—42 and 43 Vic., chapter 49—we still have the old law, that was in force before ’79, applied to this country. In England, if the sum of money is not less than £50, the Revenue Commissioners can only claim imprisonment for a period of from three to six months. That is the first point in my memorandum. I offer to give to the Committee, if required, instances where the existing law caused hardship, and in my opinion—we are here dealing with a revenue matter—it does not assist the collection of revenue, but rather, on the contrary, caused a loss of revenue. 218. Chairman.—I agree?—If any member of the Committee wants instances I will give them, but the Chairman has indicated that the matter seems to be self-evident. 219. Senator Bennett.—You say that the infliction of the extreme penalty, where it is compulsory, imposes a hardship on the person that he should not be asked to bear, and that a change in the law in this connection has taken place in England. I take it that you recommend a similar change here, and that the Excise authorities should not have the power to imprison indefinitely?—Yes. 220. I think that is a very valuable suggestion, and for my part I may say that I will be very glad to urge it in any report that we may make. I think it is a most valuable suggestion?—Thank you. The next point might be regarded as a small one, but it is one to which I attach considerable importance: it is that when a bookmaker is applying for a licence that he should apply to one of the Justices, instead of to the Superintendent of the Gárda. I cannot say that I have the absolute and unqualified approval of my colleagues in making that suggestion. To take on that work would obviously cast a lot of detailed work on us, not work of very great import, but it would take up time. I have very clear views on the matter myself, and I have mentioned in the memorandum some of the reasons which seem to me to make it essential before a Superintendent grants or refuses a certificate of personal fitness that he should have an inquiry of some sort. Now he cannot, I suggest, hold any inquiry, because to do so would be to exercise judicial functions, and that is contrary, if not to the letter, certainly to the spirit of the Constitution. Again, it seems to me essential that the person having a substantial interest in the premises proposed to be licensed should have an opportunity of objecting. I think, too— this may be controversial—that the owners of the property immediately adjacent should be given an opportunity of objecting. I remember during the last year an application was made in the Rathmines district for a bookmaker’s licence, and it was refused by the Gárdaí. Afterwards it came before me, and although I was not entitled legally to hear what a certain parishioner wished to say, the matter was so serious that I did hear that parishioner. It was a schoolmistress, who told me that she had a finishing school for schoolgirls on the opposite side of the road. She was aware that some of the young ladies had commenced to bet, and she was quite sure that if a betting shop was placed immediately opposite to the school, that would encourage these young women in making bets, and she did not think that would be conducive to their studies. She may have been right or wrong in that view, and I could not, of course, give any legal attention to her contention, but on other grounds, I am glad to say, I was able to refuse the licence on the grounds of structural unfitness. It seems to me that it is at least arguable, and should be considered, whether the owner of property in the immediate district should or should not be entitled to object. I wish to qualify one suggestion that I made in that paragraph of my statement—namely, that parishioners should be entitled to object. On consideration, I now wish to withdraw that. I think that it would be quite sufficient if the owner of the adjoining property could object. Leaving it to parishioners might make it too extensive. It is not necessary for me, I think, to refer to paragraph (2). With regard to paragraph (3), I make the suggestion there to prevent “loitering” by making it illegal to display lists. I had an opportunity of reading General O’Duffy’s evidence given before this Committee, and I wish to say that, in substance, I agree with what he has said in that connection. I also agree with a very valuable suggestion he made that penalties should be recoverable during the year, and that under the provisions of the Act the Gárdaí should be entitled to prosecute. There is a very remarkable case reported in the Irish reports, Part 9 of 1928. It is called the “Scott Case.” General O’Duffy had not an opportunity of referring to that case, when giving his evidence, as it had not then been reported; but in that case, my colleague, Mr. Little, refused a certificate of fitness over twelve months ago, on the grounds of loitering and overcrowding—of 200 people, day by day, being in Mr. Scott’s premises. Chairman. 221. Where were those premises?— Inns Quay, near the Four Courts. Mr. Little refused a certificate and the matter came before the High Court on case stated. A considerable time elapsed before the decision was given. The High Court upheld Mr. Little’s decision as to what was loitering. The point is, that during the whole of that year—it took over a year before the case was decided— Mr. Scott continued his business. The crowding may have continued all that time. The Guards’ hands were tied and they could not move at all. I agree with General O’Duffy that there should be a minimum on the bet that a bookmaker may accept. He suggests 2/-. I suggest 2/6. He suggests that no bet should be taken from a person under eighteen. I suggest under sixteen, because that is the legal age at the moment. Every person under sixteen is, in the eyes of the law, a child or a young person. As regards those over that age, the law puts no restrictions on them, practically. 222. If you made it 2/6, do you think that there would be any way of enforcing that? Could not five or six boys club together and put their sixpences or threepences in a pool, until they had made up the 2/6?—It is obvious, of course, that people could club together. As General O’Duffy said, they could put down their pennies, and I think he instanced the case of newsboys. By putting down pennies it would be easy for them to make up sixpence, but if the amount were a pound it would be impossible for that class to do it, or if it were made 10/- it would be nearly impossible for them. Half-a-crown would be difficult. It is only a question of degree. I mention the matter because it seems to me that the Act, as it were, has inoculated a certain class with the disease of gambling, and that class happens to be the very poorest class in the community. They make these small bets, Mr. Randall gave evidence before the Committee and stated, I think, that 50 per cent. of the bets in Dublin are under 2/-. 223. Senator MacLoughlin. — Did I understand you to say that the Betting Act inoculated that particular class with the desire for betting?—The legalising of it, I think, did. 224. But what about the street betting that took place before?—They had not then the excitement of remaining in the bookmaker’s shop all day. 225. Do you remember Temple Bar, about 35 years ago?—I do. Then the law against street betting was not strictly enforced. 226. Senator Bennett.—You suggest a limit of 2/6. Do you not think that if there was a reduction in the amount that that might lead to a recrudescence of illegal betting at the corners of publichouses, etc., where bets would be taken in sixpences and ninepences?—No. I have given considerable thought to this, and I am suggesting the figure of 2/6. I think that would be the happy medium where they would not take the risk of making illegal bets. Cases have come before the Courts where poor women have taken the baby’s socks and pawned them and made 6d. bets. Another case came to our notice where a woman was seen driving a perambulator to a pawn office. She pawned the perambulator and, with the amount obtained, made a bet. The point is that the class who cannot afford it are betting. 227. Deputy Doyle.—I understand that 75 per cent. of the bets taken are in or about 1/-?—That may be right. 228. In view of that, you have suggested, in my opinion rightly, that too drastic limitations with regard to premises and things like that would encourage a revival of street betting?— That is right. 229. The figures submitted show that 75 per cent. of the bets are about 1/-. Would it not strike you that increasing the amount of the bet would likewise lead to considerable abuse?—There must be two sides to a bet—the person who wants to make the bet and the person who takes it. I suggest if you put a limitation of 2/6 the provision will not be sufficiently drastic to encourage illegal street corner bookmakers. It is only a matter of degree. I see your point as to danger, and that is a reason why one should be careful not to put the figure too low, or too high. 230. That there should be no sixpenny bets?—Yes. It is merely a question of degree as to what would be your limitation. 231. Deputy MacEntee.—You see the objection Mr. Randall raised to fixing too low a limit—in fact, fixing a limit to any bet—and that is that people will continue betting with the smaller amounts, the result being that the revenue will not secure any portion of the bets, as they cannot collect the tax on illegal bets?—There are two points of view there. If Mr. Randall suggests that the Oireachtas should legislate so as to obtain a national revenue from the very poor, and if that idea is adopted I have nothing to say, but if we say we do not want to make a national revenue from the very poor, then I think the evidence General O’Duffy gave is a complete answer to Mr. Randall. He says that newsboys collect pennies to make sixpenny or shilling bets. Obviously, these people would not be able to collect sufficient to make a bet of £1 or 10/-. If we take a happy medium and, as I suggest, have half-a-crown, that, of course, would not prevent people clubbing together and making bets, but it would reduce the number of bets made by the very poor. 232. I do not think it would be fair to say that Mr. Randall suggested national revenue should be collected from the Betting Tax. The only thing he was endeavouring to do was to point out that if you put the limit too low the Act would be evaded and that the revenue would derive no benefit from that evasion. In connection with the question of the boys, would not that be more properly dealt with by fixing an age limit?— Of course it would. 233. If we fix the age limit sufficiently high, say eighteen or so, then I think the danger of boys collecting and making up a shilling would be minimised?—That would help. Then you have adults. Take people drawing the dole, and poor women. I am speaking more on behalf of the poor women than the men. I notice Mr. Randall said that even from the revenue point of view they were opposed to any proposal for a minimum bet. 234. It struck me when you talked about the lady who pawned socks and the lady who pawned the perambulator, that if you fix the limit too high the women would pawn perambulators instead of socks and still make bets?—That is so. I suggest if you make a minimum for a bet that would reduce the number of bets made by the very poor. I do not say it will stop their betting but it will reduce it. I also suggest that there is no moral right to allow a rich man to make a bet and to prevent a poor man making a bet. You cannot introduce an Act saying, “You cannot make a bet unless you have so much a year.” That would be class legislation. Senator MacLoughlin.—It is said there are only two classes of people that bet— millionaires and people with under £1 a week. 235. Senator Bennett.—You suggest the age of sixteen? How would you suggest a bookmaker would know whether a person is under sixteen?—In the same way as a publican knows when a juvenile comes in to get drink to carry away. He can say, “What age are you?” In the publican’s case the child says, “I am seventeen,” or “I am eighteen,” and if, from the appearance of the child, there was reason to believe that, the publican would not be convicted. The same would apply to the bookmaker. My own personal view is—it has not been said to me by any bookmaker—that bookmakers would support such a suggestion to keep the boys out. 236. Deputy MacEntee.—Why do you suggest the age of sixteen instead of eighteen?—Merely because it happens to be the age in the Children’s Act. 237. Leaving the Act out altogether, do you think that a suitable age?—I think it is too low, and I prefer eighteen. 238. General O’Duffy says eighteen. As between the two, is there any other argument for sixteen than that it is the age in the Children’s Act?—None. My only reason is that sixteen is the age in the Children’s Act. When I prepared my memorandum I had not the advantage of reading General O’Duffy’s evidence, but I would agree with him on that point. It is a rather remarkable thing that there is no definition in the Act of the business of bookmaking. It would be desirable if a new Act was passed to put in some definition. A definition is given in the British Act of 1926. That, of course, does not operate here. The strict meaning of the words “bookmaking business” would appear to include something more than the making of bets. 239. Deputy Doyle.—The word “loitering,” I think, needs a little definition. What would constitute loitering in the house?—Loitering was defined in the judgment given by Mr. Justice Hanna in Scott’s case. It is given in the last number of the Reports. He makes quite clear what the High Court view is of loitering. We have no further difficulty in the matter in our courts. Even though you remain for the purpose of making a bet, the argument was you were loitering if you were delaying longer or lingering there over the purpose of your business, such as the making of bets. The decision of the High Court makes it clear that loitering means lingering for any purpose. 240. Deputy MacEntee.—Does that mean if a person goes in for the purpose of making a bet and finds a number of people there, and waits, that that is evidence of loitering in his case?—No; but if, having made his bet, he remains afterwards. 241. If he remains after transacting his business?—Quite so. 242. Deputy Doyle.—Some commission agents have large and others small premises. When the meal hour of the day arrives and a crowd rushes in, the houses in some places might get congested. From the meaning of “loitering,” as I understand it, some of these men would be loitering. I think something ought to be done to give a better definition of the word “loitering” to meet cases of that kind?—We would be very happy to have it. It would assist us a great deal in our work, but, having regard to what was discussed and decided in the High Court, I would prefer not to offer a suggestion as to what the definition should be. 243. Senator Bennett.—On whom does the onus of proof of loitering lie?—On the Gárdaí. It also occurred to me that it would be an advantage, and would prevent the congregation of large numbers, if bets were not paid on the day on which they were made, but on the following day, within hours up to 11 o’clock in the morning. 244. Deputy MacEntee.—Would that mean the payment of bets must be made within the hours fixed?—Yes, on any day within these hours, but not sooner than the day following that on which the bet was made. 245. If a man wanted money, and he was not able to get to the bookmaker’s office before 11 o’clock, he would not get paid that day?—That is the reason I suggested it. I mentioned in paragraph 8 there are very few cases in the Children’s Court of children having committed a theft for the purpose of betting. Where they have occurred, it is usually in the cases of boys getting money to do some work and dropping into a betting shop in the hope of winning a bet and getting paid at once. Such boys would not have committed the offence if they could not get paid until the next day. 246. Senator MacLoughlin.—Might it not lead to this: That if one arrived too late for payment, he could say to the bookmaker. “Put that on a particular horse running to-day,” or it would tend to his putting more on than if he had the money at his disposal?—It might have that effect, but I do not think it is likely. If he had ten shillings won he might say, “Put on half-a-crown out of that.” 247. Would it not be very hard to enforce the limitation of paying out?—It would be somewhat difficult. 248. Deputy MacEntee.—My difficulty would be as to whether your suggestion that payment should be made on the day following on certain hours up to 11 o’clock would be practicable or not?—I must confess that my knowledge is so small that I am unable to answer. It may be quite right. 249. It strikes me the incidents you cite of messenger boys and persons of that description would be dealt with if there were a fixed age limit under which bets should not be made?—Yes, if you went up to twenty-one. 250. If we also provide that a bookmaker should not pay the winnings on the day the bet was made, that would guard against the boy chancing having his winnings before he goes back to his employer?—Having heard what you said, I must revise my views, and say I agree with that, because if the other provisions suggested by General O’Duffy were adopted, the loitering would not be great. If that is so, there will be no great harm in paying out during the hours when races are being run. 251. Provided it is on the day following?—Yes. 251a. Senator Bennett.—Betting has now been legalised, so to speak, bettor has no legal guarantee of the financial standing of the bookmaker. From your point of view, do you think it would be advisable that one of the conditions in licensing a bookmaker should be financial stability?—Yes. 252. When a man goes into a bookmaker’s office, and the Government recognise the bookmaker as a man who ought to make bets, would it be advisable that before he got his licence he should show his ability to pay bets?—In my opinion, yes. 253. Senator MacLoughlin.—Should he show it by making a deposit?—No, in my opinion. 254. Senator Bennett.—By a banker’s reference or something of that nature?— Yes. 255. Chairman.—Would he not want to have some return for that by way of assisting him to collect his debts if he were supposed to show his ability by a deposit—the Government give him no help in recovering his debts?—If you put that question to me before this Act was passed, I would say, undoubtedly, do not allow the bookmaker to recover a bet which has been made with him on credit and which has been lost. Since the Act was introduced, I must confess that I can see no justification for refusing that right to him. Having legalised betting, I cannot see why the bookmaker, who, of course, takes cash from the poor man, should not be entitled to sue the rich man who makes a bet on credit. 256. That is what I say. If you do it in one case, I think it would be a fair thing to do it all round—that it would be only fair to give the bookmaker protection?—To do that would not encourage betting amongst the classes whom I am suggesting ought not to be encouraged— the poor. 257. Deputy MacEntee.—Is it not the unfortunate experience of the bookmaker that it is the person who has the reputation of being rich rather than the person who is rich who refuses to pay when he gets credit? I certainly think that we ought to examine the question rather more closely before we decide to make it possible for a bookmaker to collect winnings as a result of a credit transaction. I am not quite certain on the point, but is it not a fact that publicans who are also licensed cannot recover money in respect of liquor which has been sold?— That is so. 258. I think there is an analogy between the publican and the bookmaker?— It is a matter to consider. 259. Senator MacLoughlin.—That only applies to liquor which has been consumed on the premises?—I suggest that providing for a minimum bet would minimise the risk of that evil. 260. How?—Because the poor man is not likely to make a bet for a large amount, nor is the bookmaker likely to give him credit. He is not likely to give credit for more than a half-crown. Senator MacLoughlin.—He would not give credit even for that. 261. Deputy MacEntee.—That is not an ordinary commercial transaction between bookmaker and bettor. If the bookmaker allows credit he takes a risk. Consequently, the credit betting cannot be a very unprofitable business. In view of the fact that a certain custom has been established in regard to it, and that the bookmaker has been quite content to take the risk, I think that we ought not to give him any further facility in that regard. Witness.—You think he ought not to get any further facilities for his credit betting? 262. Deputy MacEntee.—He has been satisfied up to the present, and it is not an undue hardship upon him?—There is that view, but it seems to me that it is difficult logically to defend it, when you allow him to take a cash bet and keep that bet, and to defend successfully any action which might be taken against him by the person who makes the 2/6 bet for the repayment of that money, even before the race was run, and prevent him from sueing the rich man to whom he has given credit. 263. That is a different matter. I believe that an action should lie against a bookmaker to recover the results of a cash bet, but I do not think any person should be placed in a position to take action in respect of a credit bet. I think they are two very different classes?—I agree that they are different classes. But my mind goes to the limitation of any facilities to encourage bets made by poor people—the working man or woman in receipt of the dole, and, of course, juveniles. I do not think that the wealthy man desires or requires any protection, and, if so, I cannot see morally how, if he makes a credit bet and loses, he should not be legally compelled to pay it. 264. Senator MacLoughlin.—Take the case of a man reputed to be wealthy who is not actually wealthy, and who goes to a bookmaker and has £20 on a horse on credit. If that man was betting in cash he might not put more than £2 on that horse. If you facilitate the bookmaker in collecting the £20, do you think it is right?—Why not? 265. In other words, the man bets above his means, and the bookmaker takes the risk?—Why should not the bookmaker be entitled to recover? 266. Senator Bennett.—Would it not be a temptation to the bookmaker to give every man credit?—It would be a temptation to give credit more freely. 267. Deputy MacEntee.—One of the things which I think prevents bookmakers from extending credit more freely is the knowledge that they cannot recover in respect of credit transactions. If we make it possible for them to collect credit bets, then they are going to extend credit, and the evil of credit betting is going to grow?—I cannot dispute that that risk will be run by legalising betting. Whether it is a risk necessary to guard against I do not know. There is that risk; but, having heard that, I still suggest that the rich man who makes a credit bet is not entitled to the protection he has at present by which he can repudiate that bet and say he will not pay. The Committee adjourned. |
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