Beirne, Appellant; Duffy Respondent (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 11 June 1915
• Date: 11 June 1915
• Court: King's Bench Division (Ireland)

Beirne,

Appellant

and

Duffy,

Respondent (No. 2) (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Licensing Acts — Licensed Premises — Business other than Sale of Intoxicating Liquors carried on — Billiard-playing — Billiard-room and Bar-room — Bach door from each into Common Yard — “Structural Separation” — Intoxicating Liquors (Ireland) Act, 1906 (6 Edw. 7, c. 39), s. 2.

Licensed premises consisted of an hotel, an open yard at the back thereof, and a billiard-room projecting from the rear of the hotel into the yard. The sale of intoxicating liquor was carried on in the bar-room, an apartment immediately adjacent to the billiard-room, and separated from it by a wall of masonry without any opening. From the street the entrance to the yard was by a passage under part of the hotel. The hotel and the billiard-room had each a back door into the yard. To get from the billiard-room to the bar-room one had to step into the yard, and from there to the back door of the hotel, thence through a passage to the hall of the hotel, and thence through another passage to the bar-room, a distance of about 60 feet. During hours when licensed premises are required to be closed, the licensee kept the billiard-room open, but at the same time the back door of the hotel, and the bar-room door, were locked. The licensee was prosecuted for having failed to close her licensed premises as required by statute.

Held, by Palles C.B. and Gibson J., Cherry L.C.J. dissenting, that the portion of the premises in which the sale of intoxicating liquor was carried on was not structurally separated from the billiard-room, and that the defendant had committed a breach of section 2 of the Intoxicating Liquors (Ireland) Act, 1906.

Case stated by justices under 20 & 21 Vict. c. 43.

At Strokestown Petty Sessions, on the 22nd April, 1915, the appellant, a district inspector of the Royal Irish Constabulary, was complainant in a summons which charged the respondent, a hotel proprietress and licensed trader, with the offence of failing to close her licensed premises from 9 p.m. on Saturday, the 27th March, 1915, as required by sect. 2 of the Intoxicating Liquors (Ireland) Act, 1906, and of having kept open the premises for the purpose of carrying on a business other than the sale of

intoxicating drinks, viz., billiard-playing, the portion of the premises in which the sale of intoxicating liquor was carried on not being structurally separated from the remainder of the building. In a second summons she was charged with a similar offence on Good Friday, the 2nd April, 1915.

The facts, as stated in the case, were as follows:—The licensed premises consisted of (a) the hotel proper (exclusive of the billiard-room); (b) an open yard at the rear of the hotel, with an entrance from the street by a passage under part of the hotel, with gates at the street; (c) a billiard-room built projecting from the rear of the hotel into the yard. There was not any internal communication between the billiard-room and the hotel proper.

The sale of intoxicating liquor was carried on in the bar-room, an apartment immediately adjacent to the billiard-room and separated from it by a wall of masonry without any opening. There was a back door from the hotel proper into the yard, near the billiard-room. The door of the billiard-room was in the end farther from the hotel proper. The nearest communication between the billiard-room and the bar-room would be through the door of the billiard-room into the yard, thence to the back door of the hotel proper, thence through a passage to the hall of the hotel, and thence through another passage to the bar-room, a distance of about 60 feet. Part of the first-mentioned passage projected into the billiard-room at one corner, being separated from it by a studded partition in which were a door and a window, both now effectively boarded up on both sides. This projection appeared to have been a porch at one time, before the billiard-room was built.

There were some out-buildings in the yard, one of which was used for storing barrels of beer, and also as a bottling shed. From the store to the billiard-room door was about 8 feet. This store was not used for consumption of liquor, and it was not suggested that drink was sold there.

On Saturday, the 27th March, 1915, an acting-sergeant of the Royal Irish Constabulary at 10 p.m. entered the yard, the gates of which were open, and then went into the billiard-room, the door of which was open. He found in it two men who live in Strokestown. There was no sign of drinking in the billiard-room. He then went to the hotel back door, which was locked; he was admitted after knocking and stating his business; he found the barroom door also locked. The evidence as to the 2nd April was similar—the hour was 9.30 p.m. Five men were in the billiard-room, four being Strokestown men. On neither date was any employee of the hotel found in the billiard-room. Each of the police witnesses deposed that he had been in the habit of visiting the premises in the discharge of his duty on an average twice a week, and had never found illegal consumption of drink taking place.

The justices were of opinion on the evidence, and they held as a fact, that the separation between the billiard-room and the barroom was of such a character that no effective order for drink could be given from the billiard-room to, and received at, the bar-room.

There had been at one time a direct communication between the billiard-room and the bar-room by a doorway in the wall separating the two rooms, closed by a door with glass panels. Afterwards iron bars were added, fixed by bolts, which prevented the door being opened from either side. In consequence of the decision of the King's...