Bulford and Jefferis v Commissioner of Police

JurisdictionBermuda
Judgment Date17 August 2015
Neutral Citation[2015] SC Bda 58 Civ
Date17 August 2015
Docket NumberCIVIL JURISDICTION 2015: No.321
CourtSupreme Court (Bermuda)

[2015] SC (Bda) 58 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2015: No.321

In the Matter of an Application for Judicial Review

And in the Matter of the Liquor License Act 1974

And in the Matter of Decisions by the Commissioner of Police to Refuse Permission to the Applicants to Operate Crown & anchor Tables at Cup Match 2015 and to Refuse to Provide Reasons for that Decision

Between:
(1) Kenith Clifton Bulford
(2) John Bernell Jefferis
Applicants
and
The Commissioner of Police
Respondent

Mr. Larry Mussenden, Mussenden Subair Limited, for the Applicant

Mr. Brian Myrie, Attorney-General's Chambers, for the Respondent

REASONS FOR DECISION

(in Court) 1

Introductory
1

The centrepiece of the annual “Cup Match” holiday in Bermuda is an annual cricket match inaugurated in 1902 as part of Bermudian descendants of slaves” celebration of Emancipation on August 1, 1834. In an unusually philosophical radio commercial for a local supermarket chain (“Lindos”) which ran over this year's holiday period, the spirit of Cup Match was defined as ‘ a spirit of restorative justice for all those in our community who have been marginalised.’

2

Cup Match takes place on the grounds of one or other of two traditionally Black working men's clubs. It is a festive occasion now attended by thousands of locals and visitors with diverse backgrounds. It is also an occasion where various vendors, typically small-scale entrepreneurs, are able to enjoy a prominence and access income-generating opportunities that may be shut off to them for most of the rest of the year. A major attraction away from the cricket field at Cup Match is popular dice-based game of chance known as “Crown & Anchor”. The game is played at multiple tables under a large tent and is colloquially referred to as the “Stock Market”.

3

Against this background, the Applicants, each of whom it must be noted was earlier this year acquitted in separate high profile criminal trials, applied on July 28, 2015 for leave to seek judicial review of the Respondent's decision on July 24, 2015 (‘the Decision’) to refuse them 2 permission to operate Crown & Anchor tables under a concession operated by Fun Tyme Entertainment Limited. I considered the application in electronic form and granted leave without a hearing via email on July 28, 2015 and the application was fixed for hearing on the afternoon of July 29, 2015, the day before Cup Match.

4

The essence of the complaint was that the Commissioner of Police had no lawful authority under the Liquor License Act 1974, when deciding whether or not to grant a Crown & Anchor permit, to deselect table operators proposed by the permit applicant either:

  • (a) on character grounds and/or by reason of previous convictions at all;

  • (b) on the grounds of convictions which were spent under the Rehabilitation of Offenders Act 1976; and/or

  • (c) on the basis of undisclosed reasons based on confidential Police intelligence.

5

The Applicants sought Orders, inter alia, quashing the Decision and ordering the Respondent to grant approval to the Applicants to operate Crown & Anchor tables at Cup Match 2015. I granted that application on July 29, 2015 and now give reasons for that decision.

The leave application
6

The Notice of Application for leave to apply for Judicial Review complained that the Decision was wrong in law for a variety of reasons. The primary single complaint was that the in the absence of reasons, having regard to the absence of any statutory procedure for the grant of Crown & Anchor permits, the Decision was irrational and/or procedurally unfair.

7

The leave application was supported by the First Affidavit of Kenith Bulford which averred that ‘Fun Tyme’ was an operator of a Crown & Anchor concession for Cup Match and he had an agreement with Fun Tyme to operate tables under their concession. On July 26, 2015 he was informed by Fun Tyme that the Respondent had refused permission for him to operate the tables. A similar account was set out in the First Affidavit of John Jefferis. The Applicants each estimated, based on past experience, the one table per day at Cup Match would generate between $40,000 and $50,000.

8

On the afternoon of July 27, 2015, after email chasing from the Applicants' attorneys, the reasons (which are set out in my ruling on the leave application below) for refusing to approve the nomination of the Applicants as table operators were provided. These were coherent reasons but I was unable to identify the statutory source of the power being exercised. The Application referenced the Liquor License Act 1974. But that Act merely contained the following provision definition in section 1:

“unlawful game” means any game of chance or of mixed chance and skill for winnings in money or moneys” worth—

(a)which involves playing or staking against a bank, whether the bank is held by one of the players or not; or

(b) in which the chances, whether by reason of the nature of the game or the manner in which it is conducted, are not equally favourable to all the players; or

(c)in which the stakes or any part thereof are disposed of otherwise than as payment to a player in winnings; or

(d)which is played by means of a mechanical slot machine, but does not include—….

(iv)the game known as crown and anchor if played on the premises of any licensed club in accordance with the conditions of a permit issued by the Commissioner of Police.

9

I accordingly resolved the ex parte application for leave (in respect of which no hearing had been requested) as follows:

Dear Acting Registrar,

Please communicate the following decision to the Applicants' counsel and have a copy of this email placed on the file.

The application (which I have reviewed electronically) is a bit confused procedurally, but has obviously and understandably been prepared in haste. The so-called Ex Parte Summons for an injunction is duplicative of the Form 86 which is the correct means of commencing the application. No injunctive relief appears to be sought.

It appears that the real relief sought on an urgent basis is:

(a)leave to seek judicial review;

(b)an expedited substantive hearing of the application for judicial review;

(c)an order of mandamus compelling the Commissioner to issue a permit.

The only ground for seeking this relief articulated in the Notice of Application is (or appears to me to be) that the Commissioner has acted irrationally and /or unjustly in refusing the Applicants a permit to operate Crown and Anchor tables without giving reasons.

The Affidavit of the First Applicant exhibits an email from Superintendent Howard to Mr. Mussenden sent on July 27, 2015 at 4.25 pm (in response to an earlier email from Mr. Mussenden seeking reasons for the impugned decisions) stating as follows:

“In considering applications for the game of “Crown & Anchor”, the Commissioner of Police must consider the antecedents of each person, which includes whether the person has been convicted of offences under the Criminal Code, Misuse of Drugs Act or other offences of which violence or dishonesty was an element. If the Commissioner is not satisfied of the character or competence of an applicant, that person will not receive approval to operate or service a Crown & Anchor Table.”

This email explains by necessary implication that the Applicants have been refused a permit on character or competence grounds. It does not specify which grounds in circumstances where if the Applicants evidence is accurate competence could not be a valid refusal ground.

In the absence of particulars of the specific grounds for refusing each Applicant (the 2 nd Applicant claims to have operated a Crown and Anchor Table at an Eastern Counties match earlier this month), the application is marginally arguable.

It is unclear to me from the reasons thus far given what statutory power the Commissioner is exercising in granting or refusing permits to operate Crown and Anchor Tables. Reference is made in the Notice of Application grounds to section 1(1)(iv) of the Liquor Licensing Act, the definition section, which explains that operating a Crown & Anchor Table with a permit from the Commissioner shall not constitute an ‘unlawful game’. However, on a quick review of that Act and the Betting Act, it is unclear what the source of the substantive power to issue such permits is.

Without fuller reasons it is impossible to confirm the legality of the refusals and it follows that leave to seek judicial review must be granted.

I would further direct that a Notice of Originating Motion be filed and issued and served on the Commissioner forthwith returnable for tomorrow afternoon at 2.30 (or such other time as may be directed by the Registrar) and abridge the time for such service, subject of course, to hearing counsel for the Commissioner.’

The inter partes hearing
The Commissioner's evidence
10

The Commissioner of Police himself swore an Affidavit in response to the application. He explained that his authority to refuse the Applicants permission to operate Crown & Anchor tables derived from section 1 of the 1974 Act. He explained that the application for a permit came from the St. George's Cricket Club (‘the Club’) which used an agent 14/68 Entertainment Ltd. (trading as Funtyme Entertainment-‘the Agent’). He exhibited a form of contract between the Agent and operators which was to be entered into ‘ provided this application is approved by the Bermuda Police Service in accordance with Section 1 of the Liquor License Act 1974.’

11

He also exhibited a ‘ Crown & Anchor Permit’, which referenced section 1 of the 1974 Act and set out the following ‘ requirements’:

1. Full details of Applicant: Name, Date of Birth, Address and Occupation. (As402 check).

2. Time, Date & Venue of the event. If on Public Grounds; a copy of Parks approval.

3. If Liquor is to be sold; a copy of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT