DPP v Tivoli Cinema Ltd

• Jurisdiction: Ireland
• Judge: BARRON J.
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IESC 54
• Docket Number: [S.C. No. 82 of 1998]
• Court: Supreme Court
• Date: 01 January 1999

[1998] IESC 54

THE SUPREME COURT

O'Flaherty J.

Murphy J.

Barron J.

82/98

DPP v. TIVOLI CINEMA LTD.

IN THE MATTER OF A CASE STATED PURSUANT TO THEPROVISIONS OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS AMENDEDAND EXTEMDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLICPROSECUTION

Prosecutor/Appellant

and

TIVOLI CINEMA LIMITED

Accused/Respondent

Citations:

PUBLIC HEALTH (IRL) ACT 1890 S51

EXCISE ACT 1835 S7

INTOXICATING LIQUOR ACT 1927 S1(1)

DISORDERLY HOUSES ACT 1751 S2

INTOXICATING LIQUOR ACT 1927 PART II

INTOXICATING LIQUOR ACT 1927 S20

INTOXICATING LIQUOR ACT 1927 S21

INTOXICATING LIQUOR ACT 1927 S20(1)

INTOXICATING LIQUOR ACT 1927 S20(2)

INTOXICATING LIQUOR ACT 1927 S21(1)

INTOXICATING LIQUOR ACT 1927 S21(2)

INTOXICATING LIQUOR ACT 1927 S21(3)

INTOXICATING LIQUOR ACT 1927 S21(4)

INTOXICATING LIQUOR ACT 1927 S20(1)(a)

INTOXICATING LIQUOR ACT 1927 S21(3)(b)(ii)

Synopsis

Licensing

Licensing; case stated; statutory interpretation; use of theatre for late night concerts; prosecutions dismissed; whether defendant was in breach of the terms of the licence; what amounts to a performance; whether intoxicating liquor sold within the permitted time; whether seat includes a place of standing; whether the patrons had previously engaged or paid for a seat; s.7, The Excise Act, 1835 Held: Appeal allowed D.P.P. v. Tivoli Cinema Ltd. - Supreme Court: O'Flaherty J., Murphy J., Barron J. - 07/12/1998 - [1999] 2 IR 260 - [1999] 2 ILRM 153

Before a criminal sanction can be imposed a defendant is entitled to know by clear and unambiguous language that such a sanction will be imposed in certain defined circumstances and as there is a doubt as to the construction of sections 20 and 21 of the 1927 Act the respondent could not be regarded as committing an offence merely because there were no seats in the premises at the time members of the Gardai visited the premises. However, the playing of recorded music solely for the purpose of indicating an interval between different parts of the entertainment could not be regarded as a performance for the purposes of the 1927 Act. The High Court so held in allowing the appeal.

1 7th day of December 1998 by BARRON J.[NEM DISS]

2 The defendant is the proprietor of premises at Francis Street, Dublin known as the Tivoli Theatre. This is a custom built premises developed over the years 1986 to 1993 On the first storey, there is a modern theatre. On the ground floor, there is also a modern theatre. It has a stage but there is no fixed seating. The floor is concrete and depending upon the entertainment being provided, it may or may not have seating laid out for its audience. The premises have all necessary planning permission and local authority approvals.

3 The present proceedings relate solely to the use of the ground floor theatre for modern music late night concerts when the seating is not inuse.

4 The defendant was at all material times the holder in respect of its premises of a music, singing and public entertainment licence issued under the provisions of the Public Health (Ireland) Act, 1890; and a licence under s.7 of the Excise Act, 1835. Such premises were accordingly a "theatre"for the purposes of the Intoxicating Liquor Act, 1927.S.1(1) of that Act ("the Act") defines "theatre" as "a theatre or place of public entertainment licensed for the sale of intoxicating liquor under section 7 of the Excise Act, 1835". Such licence is defined as a "theatre licence".

5 To understand the nature of the present proceedings, it is helpful to consider the circumstances in which a licence can be issued under the provisions of s.7 OF the Excise Act, 1835. This section is asfollows:

"... it shall be lawful ... sell beer, spirits and wine in any theatre established under a royal patent, or in any theatre or other place of public entertainment licensed by the Lord Chamberlain or by justices of the peace, without the production by the person applying for such licence or licences of any certificate or authority for such person to keep a common inn, alehouse, or victuallinghouse..."

6 The essential element so far as it relates to the present case is that s.7 provides for a licence to issue to "other place of publicentertainment" There is no specific definition of such other places of public entertainment.

7 At the passing of the 1835 Act, 2 of the Disorderly Houses Act, 1751 provided, inter alia, that "any house, garden or other place kept for public dancing, music or other public entertainment of the likekind" required a licence. S.51 of the Public Heath ( Ireland) Act, 1890 provided that "a house, room, garden or otherplace...should not be kept or used for public dancing, singing, music, or other public entertainment of the like kind"without a licence. This latter licence is now obtainable from the District Court as successor to the justices of the peace. As the holder of such a licence the defendant was entitled to and obtained a licence under s.7 of the Excise Act, 1835. The basis of the entitlement is important when considering the issues raised in the present case.

8 The sale of intoxicating liquor in a theatre as defined by the Act is controlled by part II of the Act which deals with prohibited hours in relation to the sale of intoxicating liquor. Sections 20 and 21 relate specifically to theatres, as defined. They are as follows:

"(20)(1) No person shall be admitted to any theatre after the hour of half past nine in the evening unless either-"

(a) he has previously engaged or paid for a seat in that theatre for the performance or entertainment then in progress or about to commence, or

(b) he is employed in that theatre or has business with a person so employed."

9 Subsection(2) provides that if anyone is admitted to a theatre in contravention of subsection(1) the holder of the theatre licence shall be guilty of an offence.

10 Section 21 provides:

11 2 "(1) The provisions of this Act in relation to prohibited hours shall not apply to a theatre.

12 (2) In this section the expression "permitted time"means a period beginning half an hour before the commencement of a performance in the theatre in respect of which the expression is used and ending half an hour after the termination of suchperformance."

13 Subsection (3) provides not only for the times at which but also for the persons to whom and the parts of the theatre in which it shall not be lawful to sell or expose for sale any intoxicating liquor. Subsection (4) makes breach of this provision an offence.

14 The downstairs theatre was visited on three occasions in 1994 by Garda Officers on night when it is said by the defendant that late night concerts were taking place on the premises. On each occasion music was being played and there were a large number of patrons apparentlydancingor moving individually in time to the music, as well as a smaller number drinking intoxicating liquor at either of two bars on the premises. The evidence on behalf of the prosecution was to the effect that recoded music was being played whereas the evidence on behalf of the defendant was to the effect that live music was being...