Before: THE VICE-CHANCELLOR: The Rt. Hon. Sir Richard Scott
The Rt. Hon. Lord Justice Chadwick
The Rt. Hon. Lord Justice Buxton

Claimant/ Respondent
First Defendant/ Appellant
Second Defendant

Mr P. Sales and Mr T. Pitt-Payne instructed by H.M. Custom & Excise for the Appellant

Mr D. Oliver QC and Mr M. Cunningham instructed by Goldsmiths, London SWIY 6JF for the Respondent

Hearing date: 1st February 2000

JUDGEMENT - Approved for Handing Down (subject to editorial corrections)

DATED: Tuesday 29th February 2000

The Vice-Chancellor: -

1. This appeal raises a narrow question of construction of construction of section 9(1)(b) of the Betting and Gaming Act 1981. The 1981 Act is a consolidating Act which reproduces previously enacted statutory provisions. Under section 1(1)(a) of the Act betting duty is chargeable on any bet which is not an on-course bet and which "is made with a bookmaker in the United Kingdom". There are other circumstances set out in the sub-section in which betting duty becomes chargeable but I need not refer to them. Under section 2(1) the betting duty has to be paid "in the case of a bet with a bookmaker . . . by the bookmaker". Naturally enough bookmakers make arrangements under which the real cost of the betting duty for which they become liable is borne by the punters who place bets with them.

2. Betting duty is an excise duty and the Commissioners of Customs and Excise are responsible for its collection.

3. Section 9 of the Act is entitled "Prohibitions for protection of revenue". It reproduces provisions which had their origin in the earlier legislation. The purpose of section 9, and its statutory predecessors, is to prevent bookmakers who are based off-shore, and who are therefore not chargeable under section 1(1)(a), from soliciting bets from people within the United Kingdom.

4. Section 9(1) provides as follows-

(1) Any person who -

(a) conducts in the United Kingdom any business or agency for the negotiation, receipt or transmission of bets to which this section applies, or

(b) knowingly issues, circulates or distributes in the United Kingdom, or has is his possession for that purpose, any advertisement or other document inviting or otherwise relating to the making of such bets,

Shall be guilty of an offence.

Subsection (2) provides that: -

(2) Except as mentioned in subsection (3) below, this section applies to -

(b) all bets made with a bookmaker outside the United Kingdom

5. Sub-section (3) excludes certain types of bet from the operation of the section and sub-section (4) deals with the sentences that can be imposed on persons convicted of a section 9 offence. Nothing, for present purposes, turns on these sub-sections. Sub-sections (5) has, however, some relevance. It provides as follows: -

"(5) A person who makes or tries to make a bet, or who gets or tries to get any advertisement or other document given or sent to him, shall not be guilty of an offence by reason of his thereby procuring or inciting some other person to commit, or aiding or abetting the commission of, an offence under this section".

6. The evident purpose of sub-section (5) is to allow punters to bet with off-shore bookmakers and to obtain documentary information about the odds or other services on offer from off-shore bookmakers without being guilty of a section 9 offence. If an off-shore bookmaker sends to an individual in this country documentary material “that relates to the making of . . . bets”, the off-shore bookmaker, but not the individual, will be guilty of a section 9(1)(b) offence.

7. The main purpose of section 9 is to protect the revenue bet that is not its only purpose. The effect of the section, and presumably one of its purposes, is to protect domestic bookmakers from unfair competition from those who operate off-shore. An off-shore bookmaker who is not chargeable with betting duty will be able to offer a more attractive return to punters than domestic bookmakers can offer. Nothing in the Act prevents domestic punters from placing their bets with off-shore bookmakers. But section 9(1)(b) prohibits the issue, circulation, or distribution in this country of advertisements or other documents relating to the making of bets with off-shore bookmakers.

8. The issue for decision on this appeal is whether an off-shore bookmaker who arranges for advertisements for his services to be made available for viewing on television screens in the United Kingdom by being broadcast on Teletext commits an offence under section 9(1)(b).

9. Mr Justice Lightman, in the judgement under appeal given on 16 July 1999, held that he did not. He held that "advertisements” in section 9(1)(b) were limited to advertisements in documentary form and that the means by which advertisements broadcast on Teletext were made available for viewing did not involve the issue, circulation or distribution of any document.

10. The Commissioners of Customs and Excise, defendants below, have appealed. Teletext Limited, who are responsible for Teletext broadcasts, were second defendants below. They took no part in the proceedings below and have taken none on this appeal.

11. The respondent in this Court, the successful claimant before Mr Justice Lightman, is Victor Chandler International. I shall refer to them, for convenience, as VCI. VCI was incorporated in Gibraltar in 1991 and in October 1996 established itself as an off-shore credit betting business offering services to persons outside the United Kingdom. VCI is not a "bookmaker in the United Kingdom" and so is not chargeable with betting duty under section 1(l)(a) of the 1981 Act. Victor Chandler Credit Betting Ltd. is a company incorporated in England. Its business was the provision of credit betting services within the United Kingdom. It was a "bookmaker in the United Kingdom". So Victor Chandler Credit Betting Ltd., unlike VCI, was chargeable with betting duty on bets made with it. With effect from 17 May 1999 Victor Chandler Credit Betting Ltd. sold its business and contact lists to VCI. VCI is anxious to carry on and promote the UK business it has acquired.

12. Teletext Ltd. is a broadcasting company. It began broadcasting on 1 January 1993. It broadcasts alongside the ITV and Channel 4 television channels what are known as "screen frames”, or “pages", which contain news, information and advertisements. The pages can be accessed by a television viewer using a television remote control and typing in the number of the desired page. That page will then appear on the television screen. A similar service is offered by a company called Skytext Ltd. A number of United Kingdom bookmakers advertise the odds they are offering about various sporting events by broadcasting the information on Teletext or Skytext, or both.

13. VCI wishes to advertise its services on Teletext and Skytext. The information it wishes to broadcast includes the odds it is offering and other information about sporting events, together with news items and reference telephone numbers.

14. For the purposes of the hearing before Mr Justice Lightman the parties produced an agreed Statement of Facts. A few additional paragraphs were added to the agreed Statement at the hearing itself. Paragraphs 9 to 24 of the agreed Statement, as amended, set out in some detail the manner in which the information desired by VCI to be included in a Teletext broadcast is collected in VCI's computers at its Gibraltar premises, is relayed to Teletext's central editing database system in the United Kingdom, is transmitted from there to remote databases at Teletext's transmitter sites in the United Kingdom and from there is broadcast alongside the ITV and Channel 4 television channels.

15. The paragraphs are as follows: -

“9. The information would be prepared on VCI’s personal computers at VCI's premises in Gibraltar using bespoke software which enables VCI in real time to up-date the Teletext pages remotely as and whenever necessary.

10. What is seen on the screen would be updated by VCI as frequently as it wished to do so. Depending on a variety of circumstances, including changes in odds, the information might be updated as often as l00 times a day.

11. In addition pages would be replaced as often as necessary depending on a variety of different circumstances including whether a particular race had taken place. The period for which each page would be displayed would be subject to agreement between VCI and Teletext.

12. The information would be saved by VCI on its own personal computers (on the databases of those computers) at its premises in Gibraltar. It would then in real time be relayed as a batch of information to Teletext's central editing system in the United Kingdom by direct electronic transmission over a data link, either using a modem and telephone line or a leased data circuit via VCI's communications agent. Laveroch von Schoultz Limited (“LVS”). A modem is a piece of telecommunications equipment which modulates and demodulates a message. It changes data into a sound in order to send the sound along the telephone line and then restores the sound into data again (i.e. data held on the recipient computer system). A leased data circuit is a circuit which is continuously rented and always open,, not just for the length of the call.

13. LVS is a communications agent. The information would be sent down one private leased telephone line from Gibraltar to LVS in the United Kingdom and from there down a number of telephone lines to Teletext. The information would not be stored by LVS.

14. Teletext would from its central editing system databases distribute the pages electronically to remote databases sited at mayor TV transmitter sites around the United Kingdom from where the Teletext services broadcast alongside the ITV and Channel 4 television channels.

15. The information would be prepared by VCI and contain information only provided by VCI. It would not contain information provided by any other sources.

16. What is seen on the screen, being the Teletext pages, would be updated frequently and as often as necessary.

17. The information provided by VCI is continuously available on Teletext so that a user of Teletext has access to the information 24 hours a day on any day of the year.

18. Teletext is regulated by the Independent Television Commission ("the ITC"). The ITC Code for Text Services Part A section 8 requires that a record of all material transmitted be made by a means previously agreed with the ITC and be retained for a period of 90 days, and that for the avoidance of doubt this includes advertising material. In order to comply with this requirement Teletext retains an electronic archive record of all Teletext pages and all updates to those pages. Pages, and updates, remain in this archive for three months after they have been broadcast. It is possible for Teletext to print out copies of material that is in this electronic archive. From time to time the ITC seeks copies of matter which has been broadcast and Teletext provides this either in hard copy or in electronic form.

19. It is possible to print what is seen on the screen with the use of a Teletext printer which is a specialist piece of hardware and not generally available to members of the public. Pages can be retrieved from the central database at Teletext, either the live version or from the archive. Pages are viewed using a specialised Teletext page editor and this software supports printing to standard PC printers. It would not be the intention of VCI that any viewer should use a Teletext printer, although it would be impossible to stop him doing so if he so wished. Additionally any viewer who has access to a computer can purchase a TV card which enables that computer to display television and text services on the computer screen. Such cards also enable the user to gather and manipulate the Teletext data in other forms e.g. tracking share price performance over a period of days or weeks. A computer used with a TV card can print out material from Teletext on an ordinary computer printer without needing a Teletext printer.

20. This is the way in which VCI proposes to do business in the future if it is legally permitted to do so.

21. There are no material differences between the way in which the information would be passed to Skytext and the way in which it would be passed to Teletext.

22. The process as it relates to Skytext is largely similar save that Skytext is broadcast alongside the Sky channel pursuant to a satellite link.

23. There is a part of the computer electronic storage system on VCI’s personal computers in Gibraltar containing the information prepared on those personal computers.

24. If VCI broadcasts on Teletext there will be (a) a part of Teletext 's central editing system which will contain the batch of information transmitted by VCI; and (b) a part of the remote databases of Teletext which will contain the batch of information transmitted from the central editing system".

16. There were two issues argued before Mr Justice Lightman. They were expressed by Mr Sales, counsel for the Commissioners, in his skeleton argument as follows: -

"(1) Whether section 9(1)(b) applies to all advertisements relating to relevant bets, or merely to advertisements in documentary form; and

(2) If section 9(1)(b) applies only to advertisements in documentary form, whether the proposed method of operation involves the issue, circulation or distribution in the United Kingdom of a relevant document, by VCI or anyone else".

17. The breakdown of the issue before the court into these two constituent issues was understandable but, in my view, tends to distract attention from the real point at issue. The issue is whether the manner in which information collected by VCI is its Gibraltar computers eventually becomes part of a Teletext broadcast and available for viewing on United Kingdom television sets involves, for the purposes of section 9(1)(b), the issue, circulation or distribution in the United Kingdom of an advertisement or other document.

18. It is not, in my opinion, necessary to conclude that section 9(1)(b) applies to all advertisements in order to be able to conclude that it applies to VCI's Teletext advertisements. Mr Oliver Q.C., counsel for VCI, naturally placed great emphasis on the use in section 9(l)(b) of the words "or other document". These words, he submitted, require "advertisement" to be limited to an advertisement in documentary form. He fortified his argument by reference to the use of the verbs "issue", "circulate" and "distribute” in section 9(1)(b) and to the reference in section 9(5) to "any advertisement or other document given or sent to him". These textual points support, he said, the conclusion that section 9(l)(b) was intended to catch advertisements in documentary form and was not intended to catch advertisements not in documentary form.

19. It is, in my opinion, well arguable that, contrary to Mr Sales' submission, section 9(1)(b) would not catch oral advertisements. Suppose, for example, that a campaign of telephone cold-calling was instituted in order to try and persuade UK residents to place their bets with as off-shore bookmaker. I would find some difficulty in concluding that in delivering an off-the-cuff exhortation over the telephone the caller could be described as issuing, circulating or distributing an advertisement. So a construction which imposes some limitation on the breadth of “advertisement" in section 9(1)(b) may be justified. However, it is not, in my opinion, necessary for us to decide whether all advertisements, in whatever form, would be caught by section 9(l)(b). It is only necessary to decide whether Teletext, or Skytext, advertisements are caught.

20. Some points are common ground between the parties. It is common ground that VCI’s Teletext broadcasts are "advertisements" in the ordinary meaning of the word. It is also common ground that, for the purposes of section 9(l)(b), a "document" would include anything in which, or on which, information was recorded or stored. Mr Justice Lightman accepted that, as Vinelott J. had held in Darby –v- Weldon (No. 9) [1991] 1 WLR 632, “the database of a computer, so far as it contained information capable of being retrieved and converted into readable form and whether stored in the computer itself or in back-up files, was a document". The judge cited with approval a passage from the judgment of Lord Mulligan in Rollo-v- H.M. Advocate [1997] Scots Law Times 958:

“It seems to us that the essential essence of a document is that it is something containing recorded information of some sort. It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electronic retrieval".

21. I respectfully agree with all of this. It follows that VCI's computers, Teletext's central editing system and the remote databases, each of which held the relevant information, can be regarded as documents. Each of them possesses the essential characteristic of a document, namely, containing recorded information.

22. But neither VCI's computers, nor Teletext's central editing system, nor the remote databases, can sensibly be regarded as "advertisements". VCI's advertisements consisted not of the hardware, or any part of the hardware, but of the relevant information stored within these rather peculiar "documents" and transmitted electronically from one to the other end eventually to television screens. How then should section 9(1)(b) be construed and applied?

23. Mr Oliver's answer, and the judge's, is a simple one. The "documents" were not issued, nor circulated, nor distributed. What was issued, circulated and distributed was the relevant information, the advertisements, stored or contained in these "documents”. Section 9(1)(b) requires that an advertisement in documentary form be issued, circulated or distributed. An advertisement not in documentary form but stored electronically and transmitted by a series of electronic impulses is something that falls outside the concept of an advertisement or other document issued, circulated or distributed, and outside section 9(1)(b) properly construed.

24. This answer is based on the construction of statutory language that first appeared in the Finance Act 1952. It takes insufficient account, in my judgment, of the technological advances that have taken place since then.

25. Parliament could not in 1952 have contemplated the means by which advertisements intended to be seen or read can now be created, circulated and distributed electronically. These things were not then possible. In 1952 an off-shore bookmaker who wanted to advertise his services in this country might have done so by issuing and distributing ordinary documentary material. That would plainly have been caught by section 9(1)(b). He might have done so by commissioning a film to be made and shown on cinema screens. If not in 1952, then soon thereafter such a film could have been shown also on television screens. It is accepted, rightly that the film would have constituted an “advertisement or other document". The film would have been circulated and distributed, if not issued, in the United Kingdom and an offense under section 9(1)(b) would have been comitted. But the techniques of dissemination of information, including advertisements, have been transformed since 1952 by the advent of the computer, the internet, the world-wide web and a developing understanding and mastery of the electronic impulses by means of which these technologies can be made to serve a variety of purposes. It is plain that, when section 9(1)(b) first took statutory form, neither the draftsman nor Parliament would have had in contemplation the manner of advertising intended to be used by VCI via the Teletext broadcasts.

26. I would accept that the dissemination of VCI's advertisements in this manner does not involve the issue, circulation or distribution of a document in the normal meaning of those words. Mr Oliver submits that the technological developments that enable advertisements to be transmitted via Teletext have led to a lacuna in section 9. The section simply does not cater for them. If the lacuna is to be filled, Parliament must do it, not the Courts.

27. There are, of course, some gaps in legislation that cannot be filled by judge made law. But it is now a well known rule of statutory construction that an “ongoing” statutory provision should be treated as "always speaking". The principle is set out in Bennion's Statutory Interpretation 3rd edition at section 288 (p. 686).

“(2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as 'always speaking'.

(3) A fixed time Act is intended to be applied in the same way whatever changes might occur after its passing. Updating construction is not therefore applied to it".

28. These principles received the endorsement of the Court of Appeal in R -v-Westminster City Council (1997) 9 Admin. LR 504, where Lord Woolf M.R. described the National Assistance Act 1998 as "a prime example of an Act which is 'always speaking' and so should be construed ‘on a construction, that continuously updates its wording to allow for changes since the Act was initially framed' " (p. 509). Lord Woolf’s citation was from the 2nd edition of Bennion.

29. Mr Oliver protested that this 'always speaking' construction ought not to be applied to a statutory provision that created a criminal offense. But in R -v- Ireland [1997] Q.B. 114 the Court of Appeal held that silent telephone calls resulting in psychiatric damage to the victim could constitute an “assault occasioning actual bodily harm" for the purposes of section 47 of the Offences Against The Person Act 1861. As to the meaning of "assault", in section 47, Swinton Thomas L.3 said: -

"The early cases pre-data the invention of the telephone. We must apply the law to conditions as they are in the twentieth century"

30. Another example of a penal "statutory provision being given an 'always speaking' construction is given by Bennion at p. 696: -

""Section 4 of the Foreign Enlistment Act 1870 makes it an offence for a British subject to accept any engagement in the ‘military or naval service’ of a foreign state which is at war with a friendly state. The mischief at which 5.4 is aimed requires this phrase to be taken as now including airforce service ... A modern court should treat ‘military or naval service' in 5.4 as including any service in the armed forces of the state in question”

I respectfully agree.

31. A very recent example of an "always speaking" construction being applied to a statutory provision is Fitzpatrick -v- Sterling Housing Association Ltd [1999] 3 WLR 1113. The question was whether an individual who had lived for a number of years with a partner in a stable and permanent homosexual relationship could be described as "a member of [the partner's] family" for the purposes of paragraph 2(2) of Schedule 1 to the Rent Act 1977. The House of Lord held that he could. Lord Nicholls of Birkenhead posed the question "cam the expression ‘family’ literally be interpreted in 1999 as having a different and wider meaning than when it was first enacted in 1920?". His answer was 'Yes' and he explained it in the following passage: -

" A statement must necessarily be interpreted having regard to the circumstances when it was enacted. It is a fair presumption that Parliament's intention was directed to that state of affairs. When circumstances change, a court has to consider whether they fall within the parliamentary intention. They may do so if there can be detected a clear purpose in the legislation which can only be fulfilled if an extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it was expressed" (p. 1129).

32. Before applying an "always speaking” construction to a penal statutory provision in order to take account of developments which have taken place since the provision was enacted, the court must, in my judgment, be very clear that the new situation to which the provision is to be applied is within the mischief at which the provision was aimed. It must be very clear that the new situation falls within the Parliamentary intention. I find myself in no doubt in the present case that that requirement is satisfied. Whatever may be the position regarding advertisements delivered orally, section 9(1)(b) was aimed at prohibiting off-shore bookmakers from advertising in the United Kingdom for business. The documentary advertisements that the draftsman of the Act had in mind would have had some quality of permanence. Mr Sales has, as I have said, submitted that the word "advertisement” in section 9(1)(b) covers all advertising of any sort. If he is right, oral advertising would be caught. But whether or not Mr Sales is correct in attributing such a wide meaning to “advertisement”, and I am not satisfied that he is, there is a clear distinction between oral advertisements and documentary advertisements. Advertisements in ordinary documentary form would obviously be caught by section 9(1)(b). Films and other taped recordings are, it is accepted, 'documents' and, if they contain advertisements, are also caught by the section. So, too, in my judgement, is an advertisement or other information stored electronically in a computer bank or in some form of database. So far as the mischief at which section 9(1)(b) was aimed is concerned, I can see no difference at all between advertisements inserted in a newspaper or periodical, advertisements recorded on a film and projected on a cinema screen, advertisements recorded on a film and broadcast for viewing on television screens and advertisements stored in electronic form and broadcast for viewing on television screens. In each case, in my judgement, the advertisements are of a sort that fall squarely within the mischief that section 9(1)( b) was trying to prevent. If section 9(1)(b) is not construed so as to catch advertisements of the sort that VCI is arranging to be broadcast on Teletext, the ability of section 9(1)(b) to achieve its purpose of protecting the revenue and protecting domestic bookmakers from unfair competition by off-shore bookmakers will be seriously undermined. Section 9(1)(b) is an "ongoing" provision and, in my judgment, should be given an 'always speaking' construction. VCI's advertisements are, in my judgement, within the meaning of "advertisement or other document ...”, so construed, and, in finding their way to television screens in this country are, in my judgement, issued, circulated or distributed within the meaning of those verbs in section 9(l)(b).

33. It follows that I do not agree with the learned judge's conclusion that the statutory language is not apt to embrace the dissemination by Teletext or Skytext of VCI's advertisements. I would allow the appeal and set aside the declarations made by the judge.

Chadwick LJ:

34. The issue raised by this appeal is whether the transmission of advertising material in electronic form to a data base comprised within equipment located in the United Kingdom -- that is to say, equipment capable of receiving and storing that material -- can properly be said to be the issue, circulation or distribution in the United Kingdom of any advertisement or other document for the purposes of section 9(1)(b) of the Betting and Gaming Duties Act 1981, it being common ground that the relevant material invites or otherwise relates to the making of bets with a bookmaker outside the United Kingdom (see section 9(2)(b) of that Act).

35. The first question, as it seems to me, is whether section 9(l)(b) of the 1981 Act -- which has its origin in section 5(1) of the Finance Act 1952 and which can be traced through section 2(1) of the Betting Duties Act 1963 and section 9 of the Betting and Gaming Duties Act 1972 -- is to be given an "always speaking” construction, in the sense described at section 288 in Bennion, Statutory lnterpretation (3rd edition, at page 686) and adopted by Lord Woolf, Master of the Rolls, is R v Westminster City Council and others, ex parte A and others [1997] 9 Admin LR 504, at page 509F-G. It is, I think, plain that that question must be answered in the affirmative. The opening words of the section as first enacted in 1952 are "With a view to protecting the revenue . . .". Those words were retained in the relevant sections of the 1963 and 1972 Acts. Those Acts, and the 1981 Act itself were consolidating Acts. Although the words themselves do not appear in the 1981 Act, their substance appears in the side-note to the section. "Prohibitions for protection of revenue". Parliament has re-enacted the same provision is successive Acts over a period of thirty years for the expressed purpose of protecting the revenue derived from betting duty. It would, to my mind, be extraordinary if Parliament had not intended that the words first used in 1952 should receive a construction which takes account of changes from year to year. As it is put in Bennion, at page 687:

"In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters”.

36. The conclusion that the relevant provision is to be given an "always speaking” or ongoing construction leads to the second question: can the "true original intention” of the provision be identified with sufficient clarity to enable the court to say, with the confidence appropriate to the nature of the legislation, that it should be given effect in the new circumstances which arise out of advances in technology since the legislation was enacted. That, I think, is the issue to which the observations of Lord Nicholls of Birkenhead in Fitzpatrick v Sterling Housing Association Ltd [1999] 3 WLR 1113, at page 1129D-E are addressed:

"When circumstances change, a court has to consider whether they fall within the parliamentary intention. They may do so if there can be detected a clear purpose in the legislation which can only be fulfilled if an extension is made”.

37. The Betting and Gaming Duties Act 1981 - as its short title suggests - was enacted to impose excise duties on betting and gaming within the United Kingdom. The provisions relating to betting duties are contained in Part I of the Act. The duties are imposed by section 1(1) (general betting duty) and section 6(1) (pool betting duty). Sections 1(2) and 7(1), respectively, set the amounts of those duties. Sections 2 and 8 provide by whom the duties shall be paid and from whom they shall be recoverable. It is in that context that section 9 of the Act makes it an offence (a) to conduct business in the United Kingdom for the negotiation receipt or transmission of bets made with bookmakers, totalisators or promoters outside the United Kingdom (see section 9(2)); (b) knowingly to issue, circulate or distribute in the United Kingdom advertisements or other documents inviting or otherwise relating to such bets; or (c) being a bookmaker within the United Kingdom, to make or offer to make any such bet with a bookmaker outside the United Kingdom. The obvious purpose of section 9 is to protect the revenue derived from betting within the United Kingdom by making it an offence - subject to the saving provision in section 9(5) -- to carry on or take part in activities within the United Kingdom, described in section 9(1), which are calculated to promote, encourage or facilitate the making of bets outside the United Kingdom.

38. What, then, did Parliament intend to achieve by the words enacted as paragraph (b) of section 9(1)? The answer is clear enough. Parliament intended to protect the revenue derived from betting within the United Kingdom by making it an offence to solicit bets to be made with persons outside the United Kingdom. But it is equally clear, in my view, that Parliament recognised that it was unnecessary - and would probably be impracticable - to attempt to prohibit all forms of solicitation. The prohibited conduct is limited to solicitation by means of the issue, circulation or distribution in the United Kingdom of "any advertisement or other document”. The words used in section 9(1)(b) indicate, as it seem to me, that Parliament had it in mind to prohibit only the dissemination of information by the issue, circulation or distribution of something on or in which that information was contained.

39. I share the doubt, expressed by the Vice-Chancellor, whether a purely oral invitation to place bets with an off-shore bookmaker would be within the prohibition. It seems to me unlikely that Parliament would have chosen, in 1952, to describe an oral invitation – whether delivered face to face or over the telephone - as the issue, circulation or distribution of an advertisement. Some support for that view is found in the saving provision in section 9(5) of the 1981 Act - in particular, in the words “who gets . . . any advertisement . . . given or sent to him". And, if the words were not apt to describe a purely oral invitation in 1952, they have not become so as a result of technological advance. But it is not necessary to decide that question.

40. An obvious example of the dissemination of information by the issue, circulation or distribution of something on or in which that information is contained is the newspaper advertisement. Another is the mail-shot. There can be no doubt that both would have been within the “true original intention” of Parliament when the section was first enacted in 1952. A further example - perhaps less obvious, but equally free from doubt - is the distribution of a cinematograph reel, with or without an accompanying soundtrack. Nor is it in dispute that the physical distribution in the United Kingdom of a tape or video cassette, a compact disc or a 3.5 inch floppy diskette an which information inviting or otherwise relating to the making of bets with an off-shore bookmaker is stored would be within the prohibition.

41. The reasons why the respondent does not dispute that the physical distribution of, for example, a compact disc or floppy diskette would be within the prohibited conduct is because it accepts - as, in my view, it has to accept - that a disc on which information is stored in electronic form must, in the age in which we now live be treated by the law as a document. If authority be needed for that proposition it can be found in the judgment of Mr Justice Vinelott in Derby v Weldon (No 9) [1991] 1 WLR 652, 657E-658C. His analysis is, I think, instructive in the present context. After referring to the decision of Mr Justice Walton in Grant v Southwestern and County Properties Ltd [1975] Ch 185 - in which it had been held that a tape recording of a telephone conversation was a document within the meaning of Order 24 of the Rules of the Supreme Court 1965 - Mr Justice Vinelott went on, at page 658A-C:

“. . . there can be no distinction in principle between the tape used to record a telephone conversation in Grant v Southwestern and County Properties Ltd, which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of the chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music, is mapped by co-ordinates and recorded in the form of groups of binary numbers. And so no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language".

42. In Alliance & Leicester Building Society v Ghahremani and others [1992] 32 RVR 198, at page 199, Mr Justice Hoffmann rejected a submission that Mr Justice Vinelott's view as to the scope of the word "document" was restricted to questions of discovery under the rules of court. He applied the extended meaning to the question whether the deliberate deletion of information stored on the disc of in office computer was a contemptuous breach of an order restraining a solicitor from destroying or altering any documents relating to a conveyancing transaction. In Rollo v H M Advocate [1997] Scots Law Times 958, the High Court of Justiciary took the same view in relation to the meaning of the word in the context of the seizure of an electronic notebook under the powers conferred by section 23(3)(b) of the Misuse of Drugs Act 1971.

43. The Judge accepted that the database of the Teletext central editing system -- in so far as it stored, in electronic form, the relevant information transmitted to it from Gibraltar by the respondent -- was a document for the purposes of section 9(1)(b) of the Act; and further, that the Teletext remote databases -- again in so far as they stored the information transmitted on from the central editing system -- were documents for those purposes. But it was not enough that, under the proposed arrangements, Teletext Ltd would have documents containing relevant information in its possession; as, clearly, it would have. It was necessary, in order to fall within the prohibition in section 9(1)(b) of the 1981 Act, that the documents should be in the possession of Teletext Ltd as the result, or for the purpose, of issue, circulation or distribution in the United Kingdom. The relevant question, therefore, was whether the transmission of information to the database of the central editing system - or the onward transmission of that information to the remote databases -- was properly to be regarded as the issue, circulation or distribution of a document.

44. The judge answered that question in the negative. He observed, at paragraph 11 of his judgement, that:

"Information of itself cannot constitute a document, and the transmission of information of itself cannot constitute the transmission of a document”.

He returned to the same point at paragraph 14:

"As I have already held information alone cannot constitute a document: only the physical object which contains information can do so: and accordingly the transmission of information (whether or not contained in a document) cannot of itself constitute the transmission of a document".

At paragraph 15, the judge said this:

“The transmission from VCI to the Teletext central editing system and from the Teletext editing system to the Teletext remote databases, is transmission in the form of electronic impulses of information which the recipient (through his own equipment) inscribes his own document. The analogy in this case (as in the case of a facsimile message and email) is not with the sending of a computer disc, but with the recipient (having been furnished by the transmitter with the means of doing so) taking down in shorthand or transcribing the message from the transmitter or making a copy of the transmitter's document. . . .The statutory language is not apt to embrace what modern technology can achieve, namely the dissemination in non-documentary form of information which on receipt is reduced to written form".

45. In my view the judge reached the wrong conclusion. The error in his reasoning, as it seems to me, was to regard the transmission of electronic impulses from one electronic database to another as the transmission of "information" as if that were something distinct from the transmission of a "document". The true analysis is that the transmission of electronic impulses is simply that: it is nothing more nor less than the transmission of electronic impulses. It is the combination of those impulses within co-ordinates and groups that may convey information. If the impulses are transmitted to a system which is capable of receiving and storing them in the same, or some derivative, combination so that they can be analyzed or "read" - than it may be said that a document is created in or on the recipient database. It is as apt to describe the process as the transmission of a document as it is to describe it as the transmission of information. Indeed, it is now a matter of common parlance to talk of "sending a document" from one computer to another. But what is really happening is that, by the transmission of electronic impulses in a combination, or "language", which the recipient system can read, the sender is creating a document on the recipient database.

46. I do not, myself, find it of assistance to ask whether the process which I have described is more closely analogous, on the one hand, to the sending of a computer disc or, on the other hand, to the transcription of a oral message by a shorthand writer. Both supposed analogies seem to me to be some distance away from what, on a true analysis, is actually happening when material is transmitted in electronic form from one database to another. The right question is to ask whether the process which I have described falls within that conduct prohibited by section 9(l)(b) of the 1981 Act; that is to say, whether, having regard to the true intention of Parliament when that section and its predecessors were enacted, that process can aptly be described as the issue, circulation or distribution of any advertisement or other document. I have no doubt that that the answer to that question is "yes".

47. I agree that this appeal should be allowed.

Buxton LJ:

48. I agree that this appeal should be allowed.

49. When section 5(1)(b) of the Finance Act 1952 spoke of "advertisement or other document", the phrase carried forward into section 9(1)(b) of the Betting and Gaming Duties Act 1981, it did not in my view intend to limit the meaning of the common and popular word "advertisement" by confining it to advertisements in documentary form. Stronger wording would have been required to achieve that end. The reason for the wording actually used would seem to be that draftsman needed to address not only advertisements; but also documents that were not advertisements, but which nonetheless invited or related to the making of (in the 1952 legislation) pool bets other than through promoters in the United Kingdom. It was a compressed, but in my view comprehensible, form of words to refer to the latter case by the expression "other document". Had the word "other" been omitted, it might have appeared that the category of advertisement excluded anything that was also a document which was plainly not the intention. Nor can I see any sensible reason why, in a provision intended to prevent the advertisement of foreign betting in order to protect revenue from duty on onshore betting, any category of activity that can properly be described as an advertisement should have been omitted.

50. Nor am I persuaded by the argument that the references to "issues, circulates or distributes...or has in his possession" in section 9(1)(b), and to "given or sent to him” in section 9(5); cannot relate to advertisements in a non-documentary form. These expressions extend over the whole of the subject-matter of section 9, but that subject-matter expressly contains a number of different sub-sets: advertisement or other document. The expressions therefore do not as a matter of construction necessarily apply in every case addressed by the section; and the present argument could thus only be a good one if, in relation to the non-documentary advertisement in issue in this case, the teletext transmission arranged by VCI, they could not be applied at all. But that is not so. By the plain meaning of language, the teletext transmission is "issued" when it is shown to the public. That advertisement or emanation of the advertisement may never be circulated, distributed, given or sent. That however does not matter, because for this construction point to be made out VCI have to show that it is impossible to apply any of the wording of section 9 to the particular advertisement that is argued to fall under it; and that they cannot do.

51. I therefore consider that the advertisement contained in the teletext transmission falls under the provisions of section 9(1)(b).

52. That strictly speaking renders it unnecessary to consider the arguments as to whether, leaving aside that transmission, there has nonetheless been issued, circulated or distributed a document inviting or otherwise relating to the making of offshore bets. However, I would answer that question also in the affirmative.

53. Mr Oliver expressly accepted the contention in the Customs and Excise’s skeleton argument that "VCI’s computers, Teletext's central editing system and remote databases, and the equivalent databases maintained by Skytext, so far as they held relevant information, all constituted ‘documents’".

54. But, he contended, those documents were merely hardware, that did not move anywhere; so they could not be said to be circulated, etc. The only thing that was circulated was information, by means of electronic impulses; and as the judge had rightly held, information was not in itself a document.

55. I of course agree that “information” cannot simply be substituted for "document". However, just as, as is conceded, the range of physical operations addressed by the word “document” is not constrained by the physical nature that documents took in 1952, so we are entitled, and indeed bound, to consider the appropriate application of the concept of circulation, etc, of a document is the light of current practice and technology. When documents were restricted to paper form, it was perfectly natural to say that, for instance, a letter had been circulated when what had happened was that multiple copies of the letter had been produced and then distributed. It would have been pedantic to insist that what had been distributed was something different from "the letter". I see no relevant difference between that process and that with which we are concerned in the present case, where there is produced on, say, Teletext’s computer a document that is an exact copy of the document that is on VCI’s computer. Nor can I see any relevant difference between that process and the transmission of "a document" by fax: where what in fact occurs is that the original document remains in the possession of the sender, but is copied by electronic means on to the receiving fax machine. It would, I think, be very surprising if it were not possible to hold that a document is circulated or distributed by being sent out by fax.

56. By normal processes of construction, therefore, the documents in this case are circulated and distributed by, being electronically reproduced. And for the reasons given by the Vice-Chancellor in his judgement, that conclusion is not precluded just because the provision under construction can be characterised as being penal in nature.