DPP v Roberts
| Jurisdiction | Ireland |
| Judge | McCARTHY J.,FINLAY C.J. |
| Judgment Date | 10 April 1987 |
| Neutral Citation | 1987 WJSC-SC 483 |
| Docket Number | [S.C. No. 31 of 1986] |
| Court | Supreme Court |
| Date | 10 April 1987 |
1987 WJSC-SC 483
THE SUPREME COURT
Finlay C.J.
Walsh J.
Griffin J.
Hederman J.
McCarthy J.
BETWEEN
and
Citations:
COURTS OF JUSTICE ACT 1947 S16
BEER HOUSES (IRL) ACT 1864 S3
INTOXICATING LIQUOR ACT 1927 S2
INTOXICATING LIQUOR ACT 1927 S2(4)
INTOXICATING LIQUOR ACT 1960 S28
INTOXICATING LIQUOR ACTS 1833–1962
MCMAHON V MURTAGH PROPERTIES 1982 ILRM 342
DESMOND V KENNEDY UNREP CARROLL 04.11.83 1984/1/300
COTTINGHAM, R V THE JUSTICE OF COUNTY CORK 1906 2 IR 415
HENNESSY & CHARIOT INNS LTD, STATE V COMMONS 1976 IR 238
LICENSING (IRL) ACT 1874 S8
EMARY V NOWLOTH 1903 2 KB 264
LINNET V COMMISSIONER OF METROPOLITAN POLICE 1946 1 KB 290
R V WINSON 1968 2 WLR 113
Synopsis:
CRIMINAL LAW
Mens rea
Proof - Requirement - Presumption - Intoxicating liquor - Licensing code - Licensed premises owned by company - Licence held by defendant as nominee of the company - The business conducted at the premises was managed and controlled by the agents of the company - The defendant had no authority or control over the persons who conducted the business at the licensed premises - The defendant was convicted of the offence of selling intoxicating liquor during prohibited hours - Held that the conviction should be set aside - ~See~ Licensing Acts, offence - (31/86 - Supreme Court - 10/4/87) 1987 IR 268
|Director of Public Prosecutions v. Roberts|
EVIDENCE
Mens rea
Proof - Requirement - Presumption - Intoxicating liquor - Licensing code - Licensed premises owned by company - Licence held by defendant as nominee of the company - Defendant had no authority or control over agents of the company who conducted the business at the premises - Conviction of defendant set aside in absence of proof of ~mens rea~ - ~See~ Licensing Acts, offence - (31/86 - Supreme Court - 10/4/87) 1987 IR 268
|Director of Public Prosecutions v. Roberts|
LICENSING ACTS
Offence
Liability - Nominee - ~Mens rea~ - Company trader - Licensed premises - On the application of the company, an intoxicating liquor licence was granted to the defendant as the nominee of the company - Without objection by the defendant, the company obtained annual renewals of the licence in the name of the defendant - Section 2 of the Act of 1927 states that it shall not be lawful "for any person" to sell, or to keep open any premises for the sale of, intoxicating liquor during prohibited hours - The business conducted at the premises to which the licence was attached was managed and controlled by agents of the company - The defendant had not participated in the management of the premises since 1974 when she left and went to live with her husband - While the defendant was the holder of the licence as such nominee in 1982 and 1983, there were sales of intoxicating liquor at the licensed premises, and the premises were kept open for such sales, in breach of the provisions of s.2 of the Act of 1927 - The defendant was prosecuted in the District Court and convicted of both offences - On appeal to the Circuit Court, it was established that the defendant had no responsibility at the material times, or at any time since 1974, for the management of the licensed premises and had no authority or control over the persons who conducted the company's business there - The Circuit Court judge referred to the Supreme Court for determination a question of law which enquired whether the judge was bound, in such circumstances, to allow the defendant's appeal against her convictions - Held that the appeal must be allowed as there is a presumption that proof of ~mens rea~ is required in order to prove the commission of a criminal offence, and as that proof was absent - ~McMahon v. Murtagh Properties~ [1982] ILRM 342 considered; ~Desmond v. Kennedy~ (High Court: 4/11/83) distinguished - ~Semble~: A District Justice would be entitled, at the annual renewal sessions, to require proof that the holder of the licence to be renewed was in a position to ensure compliance with the provisions of the licensing code - Intoxicating Liquor Act, 1927, s.2 - (31/86 - Supreme Court - 10/4/87) 1987 IR 268
|Director of Public Prosecutions v. Roberts|
JUDGMENT delivered on the10th day of April1986by FINLAY C.J.[WALSH CONC]
This is a Case Stated by Judge Diarmuid P. Sheridan, S.C., Judge of the South Eastern Circuit, Pursuant to Section 16 of the Courts of Justice Act 1947, on the application of the Defendant for the determination of certain questions arising out of an appeal brought before him against the conviction of the Defendant for licensing offences. In the years 1982 and 1983 the Defendant who is a married woman had had issued to her an intoxicating liquor licence in respect of a hotel premises known as Rathcrogue Guesthouse which was the property of a limitedliability company, known as Rathcrogue, Limited, of which she was thenominee.
Three sets of summonses were issued against her in respect of offences alleged to have been committed at Rathcrogue Guesthouse on three separate dates: in July 1982; March 1983 and May 1983, the nature of the offences being offences contrary to Section 2 of the Intoxicating Liquor Act 1927as amended, namely, the offences of selling intoxicating liquor and keeping the premises open for the sale after hours. These matters all came on for hearing on the same day, namely, the 12th October 1983 at Carlow District Court, and the Defendant was then convicted in respect of the offence in July 1982 of selling intoxicating liquor during prohibited hours; in respect of the offence in March 1983, of permitting intoxicating liquor to be consumed on the said premises during prohibited hours and in respect of May 1983 of permitting intoxicating liquor to be consumed on the said premises during prohibited hours. The consequence of these convictions was a forfeiture of the licence. Against those convictions the Defendantappealed to the Circuit Court, and upon the hearing in the Circuit Court the following facts were found and stated in the Circuit Court the following facts were found and stated in the case before us.
1. That the Appellant had on the three occasions involved in the summonses "no hand, act or part in the running of the premises Rathcrogue Guesthouse, and did not aid or abet the commission of any offence as charged".
2. That the Defendant was a married woman, living with her husband and children ten miles from the premises.
3. That she had not participated in the running of the premises in any way since she married in 1974 and went to live with her husband.
4. That Rathcrogue Limited had applied to the Carlow District Court on the 15th September 1971 for an Order pursuant to Section 28 of the Intoxicating Liquor Act 1960transferring the licence attaching to the said premises to Margaret Egan, now the Defendant Margaret Roberts, as nominee of the Company.
It was not contested at the hearing before the learned Circuit Court Judge that the alleged offences hadbeen committed at Rathcrogue Guesthouse on the occasions mentioned in the summons.
On these facts two questions were raised for determination by this Court, being:
2 "(1) If as I find upon the evidence that the Defendant herein did no more than hold the licence as nominee, must I allow the appeals of Mrs. Margaret Roberts?
(2) May the Court at this stage amend the summons so as to substitute Rathcrogue Limited as Defendants in each case?"
The case made on behalf of the Defendant by Mr. Cassidy (as he then was) may thus be summarised. These are criminal offences and the Defendant can not be convicted of them in the absence of proof mens rea.The finding that she had no hand, act or part in the running of the premises and did not aid or abet any of the commission of the offences, coupled with the fact that the issue of the licence to her was as a nominee of the limited liability company only, was inconsistent with the establishing of any mens rea on her part.
2.There is no impediment on the holding of a licence by a limited liability company, and in a case where such company nominates a person to hold the licence on its behalf, it remains the actual holder of the licence and its nominee has no liability for any offences committed in the licensed premises unless he or she participates in the running and organisation of them either by delegation or otherwise. For this latter contention he relies on the decision of Barrington J. in the High Court, in the case of McMahon v. Murtagh Properties andAnor. 1982 ILRM. On behalf of the Complainant Mrs. Denham submits that the Defendant having accepted appointment as a nominee of the Company to be the holder of a licence and having permitted applications for the renewal of that licence in her name, at subsequent licensing sessions, has represented to the Court that she is in a position to supervise and is the person answerable for the proper and lawful running of the licenced premises. Therefore it is said she cannot now be heard to deny responsibility for the commission of offences on the premises on the gounds thatshe did not, nor had she the power to, prevent their commission. Mrs. Denham relies in particular on the unreported judgment of Carroll J. delivered in the High Court on the 4th November 1983, in the case of Desmond v. Kennedy in which she distinguishes the decision of Barrington J.
There is no statutory provision contained in the licensing code either (a) prohibiting a body corporate from holding an intoxicating licence or (b) giving to a body corporate an express right to appoint a nominee to hold an intoxicating liquor licence on its behalf. The existence of a well-known practice over very many years by which courts granted to bodies corporate who were the owners of licenced premises licences in the name of a...
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