By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

COURT of Appeal judges considered a conservatory order unnecessary yesterday, noting that web shop owners were free to carry on their legal licensed business operations.

However, they also noted that the police could carry out its lawful duty in investigating and possibly prosecuting web shop operators on reasonable grounds that they are suspected of being in breach of the Bahamas’ Lotteries and Gaming Act.

“They don’t have a right to break the law and expect to be protected by any court,” Appeal Court president, Justice Anita Allen said.

The application for a stay was rejected and a substantive hearing date before Justices Allen, Stanley John and Neville Adderley is scheduled for May 24. Additional submissions and documents must be in the court on or before May 3.

Reaction to the Outcome

When asked by the media for a response to the ruling, lawyer Wayne Munroe, who represents Island Game, Island Luck, FML, Asue Draw, Whattfall and Chances, said, “You would’ve been in court so you would’ve heard the exchange.”

“And you would’ve heard me say quite clearly, and the court say quite clearly, there is no substantial grounds for fear, bearing in mind the Commissioner of Police’s quite sensible statements that he will act responsibly.”

“You would’ve heard me say my clients’ fears are driven by some irresponsible politicians, I think the Commissioner of Police described them as such as well, trying to incite mischief. Well the court isn’t going to try and stop mischief cause we have a remedy if somebody is inciting mischief.”

When asked if the rejection of the stay appeal was a setback, he said: “No.”

“Because if there was some reason to think that the commissioner may run amuck, then the result may well have been different.”

“I’m content to have told the court that if what the Attorney General has said, what Mr Lauren Klein has said who represents her, and from what the commissioner has said, I could not say to the court that there is a basis for us to fear the AG will act unreasonably, or the Commissioner of Police will act unreasonably.”

Alfred Sears, who with Jeffery Lloyd, represented Paradise Games, said that the early date for appeal “will provide us with the opportunity to contest the ruling of the chief justice and we will then take it from there.”

Crown attorneys Lauren Klein, Darren Henfield, Darcell Williamson and Melissa Wright-Knowles, declined to comment.

The Case’s History

Yesterday’s Appeal Court proceedings continues a legal battle that followed the January 28 referendum, held for the public to decide whether web shops should be legalised and taxed or whether a national lottery should be established. Both propositions were rejected by the electorate.

The following day, on January 29, Prime Minister Perry Christie ordered that all web shops cease their gaming operations.

He had said in the lead up to referendum day that his administration would follow the law after voters had their say.

However, the numbers bosses took legal action on January 30 in the Supreme Court.

In response to their application, Senior Justice Jon Isaacs granted an injunction that prevented the government and the police from taking any action against the patrons and operators of web shops pending the outcome of a conservatory order that was filed by attorneys representing the webshops.

At the beginning of the month, Attorney General Allyson Maynard-Gibson confirmed the government’s plans to file an application on March 13 to lift the injunction.

That application was heard on April 2 before Chief Justice Sir Michael Barnett and a week later, the judge lifted the conservatory order and dismissed their application for interlocutory injunction, ruling 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.

Hearing before The Appeal Court

Mr Munroe and Mr Sears, after being advised by their clients, immediately appealed the ruling and applied for a stay of execution of the Chief Justice’s decision.

In yesterday’s hearing, Mr Munroe assisted by Italia Cartwright, argued that the chief justice made an error in prejudging the issue at an early stage of the proceedings in the court below and that he did find that it was an issue capable of being tried.

“Are you saying that the court could give licences for gaming?” Justice Allen asked.

“Yes. If the court finds a case of legitimate expectation, the court may find ways to execute that,” the lawyer answered.

The presiding panel put two questions to the attorney concerning the conservatory order.

“Does that prevent the appellants from carrying out their lawful business? Does it stop the police from carrying out their lawful duties to investigate without interfering with the lawful business of your clients?” the justice asked.

Mr Munroe accepted that it was not needed, but his clients were seeking it nonetheless based on fear that the police might be pressured by politicians into threatening their businesses.

He also referred to the Prime Minister’s statement not long after the outcome of the referendum, but Justice Adderley commented that the statement referred to all web shop gaming operators, not web shops.

“Correct me if I’m wrong,” he added.

“If the people enter these web shops, access the internet site out of the country and gamble, that is what we’re asking the court, if that can be regulated?” the attorney asked, adding that it was going to be a fundamental issue in the appeal.

He admitted, when asked, that his clients had not yet filed a statement of claim.

Justice Allen asked the attorney if he understood that the respondents knew they cannot impede a lawful business.

“As the children would say ‘Duh!’” she remarked, bringing laughter to the courtroom.

Mr Munroe said his clients were acting out of caution.

“What is the fear?” Justice John asked.

“You fear that the politicians will put pressure on the Commissioner of Police?” Justice Adderley also asked.

Mr Munroe said his clients did have this fear and Justice Allen asked if there was evidence of this.

The Justice also noted that the Commissioner of Police said he would act responsibly in the matter, as would the Attorney General based on their recent statements to the media. They dismissed the attorneys’ need for their clients to fear otherwise.

Mr Sears added to the legal debate that his client, which operates as both a web cafe and restaurant/bar, allowed customers unrestricted access to internet services upon payment for membership and took no control over what their activities were.

He expressed his client’s fear that the web shop owner would become bankrupt if patrons, fearing being caught in a police raid, would not patronize his business.

Justice John noted that this would not be the case if patrons were carrying out their lawful activities and also noted that only the expenses of the company were listed, not its revenue or assets.

In a brief response to the submissions made by the appellants, Mr Klein submitted that there was no factual basis for any of the submissions made by counsel for the web shops.

He referred to case authorities from South Africa, whose law with respect to gaming is similar to the Bahamas, where it notes that even if persons are engaged in gaming on the site outside of the jurisdiction, a connection exists that ties it to that nation, where laws prohibit gaming.

Addressing the conservatory order, he said there was no basis for fear as police cannot shut down operations. They can only take action for breach of the Lotteries and Gaming Act.

Decision and Date for Substantive Hearing

The judges adjourned court for 10 minutes to make a decision after spending three hours in legal discussions with counsel. On their return Justice Allen refused to grant a stay of execution of the chief justice’s ruling, which lifted the conservatory order, allowing the police to do their duty if they discover a breach of the Lotteries and Gaming Act.

She made no ruling as to costs and set May 24 as the date for the substantive hearing for the web shop owners’ appeal.