The businessman who took the Attorney General to the Supreme Court for infringing on his constitutional rights by banning gaming and gaming machines in Bermuda had the case dismissed yesterday.

Neil Inchcup Jnr. who owned Plush, a members-only club on Parliament Street with gaming machines, as well as a number of other machines in bars across the Island, filed a writ against the Attorney General late last year.

Mr. Inchcup, trading as Alexis Entertainment and Plush, challenged the 2001 Prohibition of Gaming Machines Act, which banned gaming machines from Bermuda in July last year.

Mr. Inchcup?s lawyers, Dr. Lloyd Barnett and Mark Pettingill argued that Mr. Inchcup?s constitutional rights had been breached, including his right to property and freedom of association.

Part of Mr. Inchcup?s case was that he had lost not only the gaming machines, which had been rendered worthless by the ban. He claimed he also lost the goodwill ? or reputation ? of the business he had built up.

However, in his judgment yesterday Chief Justice Richard Ground said Mr. Inchcup?s constitutional rights had not been breached.

Mr. Justice Ground said it was well established, in principle at least, that goodwill in an existing business could amount to property within the meaning of the Constitution.

The Constitution basically states that no person shall be deprived of property without compensation in circumstances where such deprivation amounts to taking possession of his interest in, or right over such property. However, Mr. Justice Ground said Mr. Inchcup?s goodwill ? or property ? was not protected by section 13 of the Constitution because it had not been acquired by anybody.

He added that Mr. Inchcup?s business was illegal anyway, irrespective of the 2001 legislation, for under the Criminal Code Act 1907 any person who keeps a common gaming house is guilty of a misdemeanour.

Mr. Inchcup in his evidence admitted that his club business was a common gaming house.

This meant he was not protected by the Constitution.

?As to the machines themselves, he retains them, and has not been deprived of anything. A prohibition on gaming machines does not, in my judgement, amount to a restriction on the Applicant?s (or anyone else?s) freedom of conscience or freedom of association, and so the Constitutional guarantees are not engaged by the legislation to which this application is directed,? he said.

Following the verdict yesterday, Mr. Inchcup said he would accept the judge?s decision, but the reason he fought it in the first place was because gambling was rife in Bermuda and he felt ?singled out? for the gaming machines.

On the question of whether or not he would appeal the decision, Mr. Inchcup said he would have to discuss it with the organisation ? Alexis Entertainment and Plush ? and go from there.

?If you look around you have bingo, crown and anchor, horse betting, football pools and poker, ? he said.

Adding that while the pubs involved in the poker tournaments might say they donate all the money to charity, the players never went home empty-handed.

?I?m disappointed that the Government did not take a survey. They just shut us down, saying this is the law and you have to live with it,? he said.

A friend of the Inchcup family and local attorney, Llewellyn Peniston said yesterday that the force of the overall argument is flawed in constitutional language, as it is both ?irrational and disproportionate?.

?If the Government is seeking to base their restriction on this sort of activity by way of moral grounds, or public interest grounds, then it must be said that the burden is upon the Government and it is their duty to discharge that burden as a justification of depriving Mr. Inchcup of his rights,? he said.

He said Mr. Justice Ground?s judgment speaks about the inception of the operation on behalf of the applicant which was in or around August 1999 and that the Prohibition of Importation of Gaming Equipment Act 1999 came into effect on December 22, 1999 ? almost four moths later.

Mr. Peniston said Government could not legislate retroactively, or seek to introduce legislation today that would enact a penalty on something that happened in the past.

He added that the new legislation should only be in effect from the day it was passed.

?Those machines were brought to Bermuda, the owners paid their import duties and they were operated with the full knowledge and permission of the Government. And then the Government introduces legislation that penalises the person.?

On another point, Mr. Peniston pointed out an article in on Thursday about a Bermuda lottery winner who walked away with a cheque for $122,000 after his name was drawn by the Caribbean lotto.

The ticket was purchased by the winner at Triple Crown Racing on Victoria Street.

However, while the Lotteries Act 1944 prohibited lotteries generally, it did legalise lotteries conducted under various circumstances. These included those promoted by societies or clubs, if all of certain conditions were complied with.

?Since when is the Triple Crown a charity?? he asked.