A 99-year old law and how it fits in with Bermuda?s 1968 Constitution were among key points at an appeal into the use of gaming machines on the Island.

And the recent addition of a further law specifically banning gaming machines for gambling has further confused the issue, according to lawyers.

The Court of Appeal has heard the background to a July 2005 case in which businessman Neil Inchcup Jr. unsuccessfully tried to sue Attorney General Larry Mussenden because the livelihood he had previously made from operating gaming machines was ended by the Prohibition of Gaming Machines Act 2001.

In 1999 Mr. Inchcup imported three gaming machines on which he paid $8,000 importation tax to Government. Within four months Government had legislated a ban on the future importation of gaming machines.

The businessman leased his machines to the Queen?s Club and, the following year, was given planning permission for a private member?s club in Parliament Street for which he obtained 20 additional gaming machines. But his enterprise was to be short-lived.

In 2001 the Government introduced a beefed-up Prohibition of Gaming Machines Act which had the effect of banning the use of all gaming machines on the Island and on visiting cruise ships.

A three-year moratorium was allowed but from July 2004 no gaming machine could legally be used in Bermuda with the exception of those which did not give a monetary reward to players.

At last year?s Supreme Court case Chief Justice Richard Ground rejected the notion that Mr. Inchcup?s constitutional rights had been infringed by the banning of gaming machines being used for gambling.

However, at a Court of Appeal hearing this week, lawyers Dr. Lloyd Barnett and Mark Pettingill, acting on behalf of Mr. Inchcup, argued that Mr. Justice Ground erred in law when he rejected the case.

There has been a ?hotchpotch? of laws and regulations relating to gambling in Bermuda during the past 100 years, said Mr. Barnett.

He illustrated this by pointing out that the 1907 Criminal Code banned so-called common gaming houses outright, yet the subsequent 2001 Prohibition of Gaming Machines Act had effectively given a three-year period of grace for gaming machine operators to carry on their business. Mr. Barnett further argued his client?s constitutional rights as enshrined in Bermuda?s 1968 Constitution had been contravened by the gaming machine regulations.

He said Mr. Inchcup had brought the gaming machines into Bermuda legally but the subsequent legislation had ?sterilised? their use.

As a result the businessman?s constitutional rights had been affected as he had lost the use of the machines for their intended purpose, his ?freedom of conscience? had been hindered as had his ?freedom of association? with other persons associated in the gaming activity, said Mr. Barnett. Summing up he added: ?In this case, during the period in which the Statute permitted the use of the gaming machines, there is no evidence that the activity had any harmful social effects or was otherwise objectionable.

?In any event, the court has to examine ? once the right is engaged ? whether the means adopted are proportionate and do not inflict unnecessary hardship on the appellant.

?The complete banning of gaming machines for the intended purpose is devastating to his business and no evidence has been presented in support of the extend of the restriction.?

Responding for the Attorney General were lawyers Saul Froomkin QC and Debra-Lynn Goins. Mr. Froomkin said the Government of every country had a right to create laws to protect public morality and it was not for the courts to question those Acts.

He said the 2001 Act had not deprived Mr. Inchcup of his gaming machines, only the use of them for gambling purposes and he said the Act had not hindered the businessman?s ability to associate with others ? except where it centred on the pursuit of gambling. Furthermore Mr. Froomkin said that, even though Mr. Inchcup had been allowed to operate a gambling house for a number of years, that did not make the activity legal.

The Court of Appeal President Justice Edward Zacca, Justice Sir Murray Stuart-Smith and Justice Gerald Nazareth, have retired to consider their judgment.