Deputy Pat McCartan has been given permission to raise on the Adjournment the question of the non-enforcement of the law in respect of gaming and amusement halls in areas, especially in and around Dublin.
Adjournment Debate. - Gaming and Amusement Halls.
First of all, I would like to thank the Office of the Ceann Comhairle for giving me the opportunity of raising this very important matter on the Adjournment. I am also appreciative of the attendance of the Minister for Industry and Commerce to listen to the few words I have to say on this matter. It is appreciated that he is, to some extent, deputising for the Minister for Justice who is abroad at present. For too long this service of gaming machines has been called an industry and it has certain implications for any Minister concerned in that area.
The basic problem arises out of the legal mire in which the law, under the 1956 Act, now finds itself. It is worth looking at the history surrounding that Act. Prior to 1956 the fundamental law of our State was that all gaming and gambling was illegal and unlawful and could only be made legal or lawful when a Statute of the Oireachtas deemed it to be so. The 1956 Act provided for each local authority directly concerned with this area, understanding the conditions that apply in each area and recognising the regional and local differences that can apply, to pass a motion bringing the law into play and allowing for gaming in its area. This was done by Dublin Corporation in May 1956. That situation pertained in the city until January 1986 when, on the unanimous vote of a council of upwards of 50 members, a decision was taken that the situation in Dublin had deteriorated to such an extent that it was now time to rescind Part III of the Act. The unanimous view of the council at the time was that this service or industry had got out of control and had abused its authority in the previous years under the law.
This view was held by the Supreme Court who, in November 1985, in passing a judgment upholding the constitutionality of the legal limits of the wager and the return from the machines, indicated its disapproval of the fact that in the intervening years since the constitutional action was undertaken and indeed in years prior to it when a certain amount of confusion appeared to have been contrived in the law, the law as it stood since 1956 had not been enforced. It laid down a very severe censure not only of the gaming managers and the hall owners but to some degree of the Garda Síochána for not implementing and policing the law as it stood.
What has happened since the January 1986 resolution is even more disturbing, because since then it appears that there has been no restriction on the wantonness of this industry, particularly in the city of Dublin. At that time there were 76 existing valid licences all of which were involved in litigation that had been standing over until the Supreme Court passed its judgment. In early 1986 they reverted back to court to conclude their business that had been hanging there since 1983, 1984 and 1985, long in advance of the passing of the resolution of the city council. They reactivated their appeals in the District Court and the Circuit Court and as a result, by reason of section 18 (3) of the Act, were allowed to continue trading.
The point has to be made that some good has come from the passing of the resolution of the City Council in Dublin in January 1986 to the extent that no new halls have opened up and no new licences or certificates have issued. All of us will recall that at that time sometimes as many applications as two a week were received by Dublin City Council for planning permission to open up these premises. This was a feature of the whole affair that worried the council so much. Those 76 premises, being extant, appealed. By reason of section 18 (3), a provision that allows the licence subsist until the appeal is ultimately determined, those halls could continue operating. Their appeals were taken from the District Court to the Circuit Court, by way of case stated from the District Court to the High Court and by way of case stated from the Circuit Court to the Supreme Court.
The situation has fallen into a legal mire but at the back of it all it is nothing more than a legal filibuster because the gaming proprietors know that as long as they maintain legal action under the guise of appeal and case stated in the various courts, then their premises can remain open and this is their last hope. The profit is so great that they are prepared to pay lawyers to spend considerable time in the courts as a device to keep their premises open. It is interesting, in the context of this filibuster, that a central case was heard by Mr. Justice Barrington in the High Court in March this year. Unfortunately, his judgment was not delivered in our favour until December — it took nine months to reach a conclusion. It is worth mentioning the absolute technicality that took the courts almost a year to determine the case. The gaming-amusement hall lawyers had argued that the circulation of the motion for the 1986 resolution had not been properly carried out. Mr. Justice Barrington, to his credit, indicated that he did not think that was a valid point and ruled against the proprietors of the amusement hall. That took almost a year and the case is now under appeal to the Supreme Court.
I will be asking the Minister to urgently convey to the Chief Justice the view of this House and of the Government, as the City Council have done, on the urgency of this issue and to ask that an early hearing of the matter will take place in the Supreme Court. That is a legitimate representation that can be made and it is not interfering with the case in any way. It is appreciated by judges of the courts that they can alter their lists to respond to a matter that is of urgent public importance. I ask the Minister that he and his Department would consider making that communication.
The second area of non-enforcement of the law relates to the policing of the Act as it stands at present. The current limits upheld by constitutional decision of the Supreme Court in November 1985 fixes rigidly the maximum wager at 2½p and the maximum delivery of a win at 50p, but it is common knowledge to anyone in Dublin that these are not the facts in reality. There are widespread abuses of the limits of the law and these are continuing despite the Supreme Court censure, despite the council's resolution and despite the unfortunate events of the last few weeks when a young man took his own life in desperation because of his addiction to those machines. This will continue unless the Garda Síochána take urgent action to implement the law as it stands.
The devices that are used are central switches to cut back the electronic control of the wager as soon as an investigator appears on the premises. They include switches on the doors to impair entry on to the premises for the purpose of investigation and the employment of cynical notices above poker machines in Dublin saying: "This is a machine of amusement and not of gambling". I am reminded of an event at the Coin-op, the show held recently in Dublin, where a TV investigation crew arrived to talk about the poker machines that were there, geared and on sale and over the legal limits as prescribed by our law. Questions were asked about this, and within minutes, a sign was produced carrying the words at the top "export only". Clearly these machines are not for export. They are for use in the streets of Dublin, in our amusement arcades in blatant breach of the law. Gaming is no longer welcome in Dublin. The city fathers, in a unanimous voice, have said so. There is a public outcry to see an end to this industry or, if it is to continue, then that it must operate within the law as it stands.
The question must be posed as to why prosecutions are not being brought in Dublin. In this respect one looks to what can be done by the Garda. In an investigation carried out by the staff of The Workers' Party Irish People weekly newspaper a report was delivered to the Garda in Waterford in January last when we gave them facts and figures in relation to four premises in that city. For example one mid-afternoon there were 60 people found on one of those premises, onethird being comprised of school children, some as young as 8 years of age. Furthermore, it was found that the limits allowed there, in one instance, went up to 40 pence. The Garda who acted in response to that probe established that he could bet up to 34p and that the delivery was much greater than the legal limit of 50p. Prosecutions were brought, the central device switch located and exposed with fines of £300 imposed and machines confiscated under the provisions of section 47 of the Act. An interesting aside to all of this is that not alone can confiscation of machines take place but the State can then sell the machine and take the money into its coffers. Therefore, if the Government are short of money here or there, there is a way to make it — prosecute these illegal gaming hall owners, confiscate their machines and convert those ugly devices into hard money for use in other needy areas.
The important point that must be made in all of this is that the provisions of the law can be enforced. In similar investigations carried out by the staff of the Irish People in December last they reported on breaches of the law in Cork and Dublin. We are advised by the Garda that there are investigations under way but the attendant prosecutions are not being brought before the courts. For example, in Waterford two more prosecutions are pending. If there is the will and determination the provisions of the law can be enforced, and to very good purpose.
One of the problems encountered by the Garda is that the switches on the front doors render it impossible for them — with their surveillance camera in tandem — to surprise owners of premises, to enter and catch people or to engage in the activity themselves. As soon as a gaming hall owner realises that the Garda, an investigator, or somebody not familiar to them, has arrived at the door they can delay them sufficiently long to depress a central switch inside the building and revert the machines, all electronically operated, to the normal rate.
Under section 38 of the Act there is a provision that says that the Garda should have open and free access to such premises. It is quite clear that the use of electronically controlled devices on entry to these premises is in breach of the provisions of that section and prosecutions should be brought under the same provisions. In laying the ground for bringing such-prosecutions I would ask the Minister and his Department to consider the issue of a circular by the Department, by the Superintendent in the Dublin area, or indeed those throughout the country to the proprietors of such premises advising them of their obligation to provide free and easy access to their premises by members of the Garda Síochána, under the provisions of section 38, and that any device, electronic or otherwise, deployed will be considered to be in breach of the provisions of that section and render them liable to prosecution.
The Minister and the House will be well aware of the public outcry in this matter. I might make a number of suggestions to the Minister and his Department for urgent consideration. I would ask, first, that representation be made to the Registrar of the Supreme Court, on behalf of the Chief Justice, to consider appeals pending as a result of the Judge Barrington ruling as a matter of public importance, seeking an early date for such hearing. Second, I would ask the Government to consider, as a matter of urgency, the repeal of section 18 (3) of the 1956 Act. That subsection contains the unusual provision that, while appeals are pending, a gaming hall can remain open. I contend that constitutes an incitement or invitation to delay the process. In the constitutional action it is quite clear that these people know all about delay and how to exploit the mechanisms of the courts. What is happening is that a district or circuit court rules that an applicant is unfit, as a person — for whatever reasons — to engage in a gaming hall activity. Then the applicant appeals. This means that, under censure of a court that they are unfit, so long as they can delay the court procedure, they can continue their gaming activities. That appears to me to be a ridiculous position but it can be rectified by repealing the provisions of section 18 (3). I have no doubt that, after the Supreme Court ruling on the issue in relation to the Barrington judgment — whether or not the circular was properly issued to councillors — when we revert to the District or Circuit Court in relation to that ruling we will find another legal issue being drawn out of the pile with new appeals being sent back to the High Court and Supreme Court. We will find that process being repeated so that years rather than months will be involved. One way to defeat the purpose, after the Supreme Court ruling, will be to leave such people no recourse to the provisions of section 18 (3), no right to carry on uninhibited.
I would ask the Minister and the Government to convey to the Commissioner of the Garda Síochána the wish of this House for the rigorous implementation of the wager limits laid down under the provisions of the 1956 Act. I would ask that consultation take place with the Garda in Waterford if the Garda in Dublin need advice as to how to implement the law. It can be done; it takes will and endeavour but will reap good results.
I have already mentioned the necessity for having the provisions of section 38 with regard to free access to these premises enforced, with a circular being issued advising these people that if they contrive in the future to delay entry on to their premises that will be considered a prosecutable offence.
I would also ask that the Government consider issuing a memorandum to the Judiciary advising them of the importance of that point. I understand this is a practice engaged in time and again by the Department of Justice, for example, with regard to prison facilities, enforcement or administration of the law, when letters are sent to the President of the District Court, the Circuit Court, the High Court and to the Chief Justice. That practice can be engaged in here in order to impress on them the need for strict implementation of the law, as it stands, indeed reminding them that the sanction of imprisonment obtains. After the Supreme Court ruling no gaming hall manager will be able to contend that there is any confusion whatsoever. The law is absolute and clear. It must be obeyed and these people must be made realise that if they breach the law they will be placed at the risk of its full sanctions, including imprisonment. That has never happened. It is now time for us to consider locking up these people. They are peddling in misery, they are not an asset to our community, we do not want them any longer in Dublin and we need the help of the Government to ensure that the law is upheld and respected.
Unfortunately the whole question of addiction and possible addiction to gambling machines has been highlighted in recent times by the tragic death of the 18 year old Shane Finn. I am sure the House and Members present would wish to join me in offering our sympathy to his parents and family, a young boy who left a note to the effect that, as a result of his addiction to gambling machines, he had been driven to taking his life.
With regard to the matter brought before the House by Deputy McCartan about the non-enforcement of the law in relation to illegal gaming in amusement halls, particularly in the Dublin area, the first point I need to make in relation to this subject is that there is no question but that the Garda are enforcing the gaming laws in an active and dedicated fashion. The existing legislation governing the use of gaming machines is contained in the Gaming and Lotteries Acts, 1956 to 1979. Detections of breaches of these Acts during the past three years — I do not yet have the figures for 1987 — are as follows: in 1984 there were 816 breaches, in 1985, 678 breaches and in 1986, 868 breaches.
The main Act, the 1956 Act, places severe restrictions on the nature and extent of gaming that may be carried on within the State. The main features in this regard are as follows: the District Court may grant a certificate authorising the issue of a licence permitting gaming at an amusement hall or funfair and the Revenue Commissioners grant a licence on foot of the certificate; the stake and pay-out in any game shall not exceed 2½p and 50p respectively; no person under 16 years of age may engage in gaming and a certificate may not be granted by the District Court for a premises in any area where the relevant local authority have not adopted by resolution Part III of the Gaming and Lotteries Act, 1956. Such a resolution allows gaming to be carried on within their administrative area.
Various aspects of these Acts are currently, and have been over the years, the subject of court challenges, most of which have sought to lessen the restrictions imposed by the Acts. The challenges have served to hinder the Garda in their efforts to enforce the law. An important example relates to the decision, as referred to by Deputy McCartan, taken by Dublin City Council on 28 January 1986 to rescind their previous adoption of Part III of the Gaming and Lotteries Act, 1956, the effect of which was to prohibit gaming in amusement halls. The intention behind this decision has yet to be effected because of a number of court challenges — which have been outlined already in this debate — which have had the effect of allowing gaming still to be carried on in the city. The Deputy knows that in relation to appeals this is the law and that while an appeal is taking place, not alone in this area but in many other areas also, the same situation applies.
In one of these cases entitled "Inspector Richard Kelly versus District Justice Oliver Macklin and his Honour Judge Gerard Buchanan (Playland Amusements Ltd.)” the State is appealing a decision by the Dublin Circuit Court to grant gaming licences to a number of applicants following the rescission of Part III of the 1956 Act by Dublin Corporation. This case is still pending and gaming licences are continuing in force. In another instance, there is a case entitled “In Re Gaming and Lotteries Act, 1956 and In Re Application of Murphy (52 Upper Dorset Street)” pending in the Supreme Court in relation to the procedure followed by Dublin Corporation in reaching its decision to rescind its original adoption of Part III of the 1956 Act. In this regard, section 18 (3) of the 1956 Act is the relevant provision. Pending an appeal against the refusal of a licence by the District Court an existing licence continues to be valid. I would point out, however, that this does not prevent the Garda from investigating and, where necessary, prosecuting in cases where breaches of the law are suspected. I might also mention the Supreme Court decision in June 1986 in the case DPP versus Peter McMahon, Seamus McMeel, James Wright which held that the Garda, before entering a licensed premises for the purpose of detecting possible offences under the Gaming and Lotteries Acts, 1956 to 1979, should have in their possession a search warrant issued under section 39 of the 1956 Act. This decision has had a particular effect in respect of the most common form of gaming instrument — the poker machine. Proprietors of premises, particularly premises licensed for the sale of intoxicating liquor, contend that such machines are for amusement only and that, consequently, their use is not in contravention of the Act. To gather evidence to prove otherwise poses particular problems for the Garda in the light of this decision.
Difficulties also arise because of the system used by some operators whereby machines operating stakes and payouts in excess of the legal limits connected to a remote control radio system can be instantly readjusted to a legal usage when a Garda inspection appears imminent. A recent successful prosecution in Waterford District Court involving such a system has thrown up a number of legal points on which advice has been sought by the Garda from the law officers.
Notwithstanding such legal difficulties encountered by the Garda, most of which I assume will be resolved in the courts in time, the Garda are making, and will continue to make, every effort to enforce the law in this regard. I am informed by the Garda authorities that it is not their policy to refrain from prosecutions under the Gaming and Lotteries Acts where a relevant court challenge in another case is pending. They take the approach that, in accordance with the decision of the Supreme Court in the case of the State (Llewellyn) versus Ua Donnchadha [1973], Irish Reports 151 proceedings should be initiated promptly in all cases where the evidence and circumstances so warrant.
We will certainly give full consideration to the suggestion made here by Deputy McCartan in relation to representations. The Department of Justice and the Minister, on his return, will give full consideration to it. We shall also look at the other points made by Deputy McCartan in relation to the problems he highlighted in Waterford. It is only fair to point out that the cases under appeal will have a bearing on the amendment of any Act to be brought in. The likelihood of a single Act to amend a particular section would have extreme difficulty in getting through the House in view of all the cases that are pending. Nevertheless, we appreciate the anxiety and public concern.
In conclusion, I want to say that I have witnessed the addiction of some people to gaming machines. When the first gaming hall was opened in Longford the local urban district council reversed an earlier decision and banned it so we do not have that addiction and problem in Longford town.
You are very fortunate.
Very.
The Dáil adjourned at 5.25 p.m. until 2.30 p.m. on Tuesday, 22 March 1988.