Kelly, R. v

Under Gaming Act 1968 section 52(1), a game involving both chance and skill is a game of chance even where skill predominates. Parliament did not impose a predominance test. An element of chance is to be ignored only where it is so insignificant that it does not matter; it need not be significant or meaningful. Construction is governed by the statutory language, rather than pre-1960 authorities decided under repealed legislation. Whether a particular game satisfies the definition is ordinarily a question of fact for the jury. Section 52(6) does not imply a wider predominance test.

The appellant operated an unlicensed club at which Texas Hold ’Em Poker was played. He charged participants and levied winnings. He accepted that the charged offences would be made out if the game was gaming within the Gaming Act 1968.

At his trial in the Snaresbrook Crown Court, the evidence established that the game required considerable skill but involved cards dealt at random. The judge directed the jury that the relative predominance of skill and chance was irrelevant, provided that chance had a significant or meaningful role. The appellant was convicted of two offences and appealed by leave of the single judge.

The central issue was whether a game in which skill predominated over chance fell outside section 52(1).

1. Appeal dismissed. The judge did not misdirect the jury. The jury was entitled on the evidence to find that Texas Hold ’Em Poker was a game of chance within section 52(1) of the Gaming Act 1968.
2. The statutory definition includes a game combining chance and skill. It does not make the classification depend on whether chance or skill is the predominant element. Parliament could have enacted such a qualification but did not do so. The court would not add it by construction.
3. Chance should be disregarded where it is so insignificant that it does not matter, such as a random choice of which player starts an otherwise skill-based game. Beyond that de minimis qualification, the statute does not require chance to be significant or meaningful. The trial judge’s direction imposing that additional threshold was more favourable to the appellant, but did not invalidate the conviction on the evidence.
4. The former law and decisions under repealed legislation, including R v Tompson [1943] 1 KB 650, did not govern the new statutory regime. Section 52(6), concerning games played otherwise than against other players, did not support a predominance test. Its function was to prevent superlative skill from eliminating chance in games against the bank.
5. United States predominance authorities gave no assistance. The court regarded the majority approach in Ross, Banks and Dyson v The Queen (1968) 70 DLR (2d) 606 as consistent with its construction, but rejected the minority view that a game with predominant skill fell outside the statutory definition.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction.
• Snaresbrook Crown Court The appellant was convicted on 16 January 2007 of two offences of organising gaming contrary to section 8 of the Gaming Act 1968.