The High Court has ruled that the inability to obtain a gaming machine licence did not provide a defence to charges of making machines available for play without displaying a licence, where the inability arose because of local authorities’ decisions not to adopt relevant gaming legislation.
Mr Justice Clarke delivered the judgment on 4 March 2005 in a case stated from the District Court. Four Leisureplex companies appealed after being convicted on charges concerning “Grand Casino” push-penny machines. The charges arose on different dates and at different premises.
The District Court found that the machines were gaming machines and had been available for play in public places without the required licence displayed. It also found that Dublin-area local authorities had rescinded their adoption of Part III of the Gaming and Lotteries Act 1956 in the late 1980s, making it impossible for the companies to obtain a gaming machine licence under section 43 of the Finance Act 1975.
The companies argued that a criminal conviction should not follow for failing to do something that was legally and factually impossible. The District Court rejected that argument, treated the offences as strict liability and convicted the companies. It then referred a legal question to the High Court.
Mr Justice Clarke said the geographical reason the companies could not qualify for a licence did not materially differ from other licence requirements, such as a minimum age. A person’s inability to obtain a licence did not make unlicensed activity lawful; on the facts, the alleged offence concerned having or failing to display the licence while carrying on the activity.
The judge said it was unnecessary to decide whether a general defence of impossibility formed part of Irish law. He said the argument did not apply where the claimed impossibility arose because a person did not qualify for the licence. He added that whether an offence was one of strict liability depended on the construction of the relevant statute. The court answered “yes” to the question put in the case stated.
The judgment determined that legal question. It did not set out a further order on the companies’ convictions.