The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

GAMING web shops are no longer protected by a court order that prevents law enforcement from taking action against them as Chief Justice Sir Michael Barnett yesterday ruled that “the police must be allowed to enforce the law unless and until the law has been declared to be invalid”.

“It is my judgment that this is not a proper case for the court to exercise its discretion to restrain the police from discharging their duties as they consider it proper to do,” the chief justice said.

“The applications for an interlocutory injunction are refused and the Conservatory Order granted on the 30th January, 2013, is discharged,” he ordered.

The decision, which came nearly ten weeks after the conservatory order was granted by Senior Justice Jon Isaacs, is being challenged in the Court of Appeal, The Tribune understands.

The court order, which had prevented law enforcement officers taking action against web shop gaming operators, was enforced shortly after the Bahamas voted against legalising and taxing the industry.

Attorney for Paradise Games, Alfred Sears, told The Tribune that he is meeting with his clients to review the ruling, which he had yet to read.

Mr Sears and Jeff Lloyd represent Paradise Games. Wayne Munroe and Italia Cartwright are representing Island Game, Island Luck, FML, Asue Draw, Whattfall and Chances.

Crown attorneys Lauren Klein, Darren Henfield, Darcell Williamson and Melissa Wright-Knowles, moved to have the January 30 court order lifted in a hearing before the Chief Justice a week ago.

They argued that operators had themselves admitted they were engaging in gaming and that such activities went outside of what they were licensed to do as web shop cafe operators.

However, attorneys for the plaintiffs noted that the Crown did not dispute that there was a meeting between the operators and the Ministry of Finance in April 2010 when full disclosure of their operations was made to the government and their licenses were renewed.

In yesterday’s written ruling, the chief justice made a number of conclusions such as damages, particulars of business activities, and the Bahamas’ Lotteries and Gaming Act itself.

“Counsel for the plaintiffs in both actions state that the serious issues to be raised in both actions are: (i) whether the activities of the plaintiffs are prohibited by the Lotteries and Gaming Act; (ii) whether the provisions of the Act are ultra vires the Constitution of The Bahamas; and (iii) whether the defendants by threatening to prosecute the plaintiffs for breach of the provisions of the Act have violated their legitimate expectation to have been granted whatever licences were necessary to ensure that their activities were not in contravention of the provisions of the Act.”

The Chief Justice went on to rule that “in my judgment there is nothing exceptional about this case which requires that the issue, whether the plaintiffs’ conduct would constitute a criminal offence, should be determined in civil proceedings brought for declaratory relief.

“Criminal prosecution has been threatened and the plaintiffs’ conduct is clearly fact sensitive. It is not without significance that this action was brought by Writ of Summons and not by Originating Summons or Originating Notice of Motion which would have been the proper procedure where a matter involves pure issues of law and no dispute as to the facts.”

He also said that the issue of conduct regarding business activities of the web shops should not be decided in civil proceedings.

“That issue is properly determined in the criminal court after a criminal prosecution has been initiated.”

Regarding the constitutionality of the matter, the chief justice said the issue of the constitution did not arise in this case either.

“What is being challenged in these proceedings is the conduct of the plaintiffs in allegedly using their premises for the conduct of promoting a lottery or for gaming without a prerequisite licence. Whether or not certain provisions of the Act violate Article 26 of the Constitution is in my judgment a complete red herring. It does not arise on these proceedings.”

He ruled that even if the civil action did raise issues with the Lotteries and Gaming Act, the police could and should not be restrained from carrying out their duties.

“It would not be a proper exercise of my judicial discretion to restrain the police for enforcing the law whilst the validity of the challenged law is being tested. Laws are presumed to be valid and must be obeyed unless and until they have been adjudicated as being invalid. The police must be allowed to enforce the law unless and until the law has been declared to be invalid.”

“I accept that if the constitutionality of the relevant provisions of the Act is challenged in any criminal proceedings in the Magistrates Court, those criminal proceedings may be stayed pending the determination of the constitutional issue in the Supreme Court. Be that as it may, it is no justification for not enforcing the law in the meantime.”

After noting that the police could only prosecute for breach of said Act and not shut down the premises, the judge dismissed the matter.