Health Service Executive v Brookshore Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 19 May 2010
• Neutral Citation: [2010] IEHC 165
• Court: High Court
• Date: 19 May 2010

[2010] IEHC 165

THE HIGH COURT

[85SS/2010]

Health Service Executive (HSE) v Brookshore Ltd

IN THE MATTER OF SECTION II OF THE SUMMARY JURISDICTION ACT 1857 AND

IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

HEALTH SERVICE EXECUTIVE

APPELLANT

AND

BROOKSHORE LIMITED

RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

PUBLIC HEALTH (TOBACCO) ACT 2002 S5

PUBLIC HEALTH (TOBACCO) ACT 2002 S6

PUBLIC HEALTH (TOBACCO) ACT 2002 S47

PUBLIC HEALTH (TOBACCO)(AMDT) ACT 2004

PUBLIC HEALTH (TOBACCO)(AMDT) ACT 2004 S3

PUBLIC HEALTH (TOBACCO)(AMDT) ACT 2004 S16

PUBLIC HEALTH (TOBACCO) ACT 2002 S47 (7)(C)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(8)(H)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(6)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(7)

INSPECTOR OF TAXES v KIERNAN 1981 IR 117

TUCK & SONS v PRIESTER 1887 19 QBD 629

DPP v OTTEWELL 1970 AC 642

FARRELL v ALEXANDER 1975 3 WLR 642

OXFORD ENGLISH DICTIONARY 10ED 2002

PROES v REVENUE CMSRS 1998 4 IR 174

DPP v KELLY UNREP CHARLTON 19.12.2007 2007/19/3829 2007 IEHC 450

PRACTICE AND PROCEDURE

Case stated

Question of law - Finding of fact - Whether finding of based on interpretation of statute - Whether High Court bound by question of law determined by District Court - Summary Jurisdiction Act 1857 (20 & 21 Vict, c 43), s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 51 - Case stated answered in favour of appellant (2010/85SS - Charleton J - 19/5/2010) [2010] IEHC 165

Health Service Executive v Brookshore Ltd

STATUTE

Interpretation

Public at large - Ordinary colloquial meaning - Penal provision - Use of dictionary - Inspector of Taxes v Kiernan [1981] IR 117 distinguished; Proes v Revenue Commissioners [1998] 4 IR 174 followed - Public Health Tobacco Act 2002 (No 2), s 47(7)(c) - Public Health (Tobacco) Amendment Act 2004 (No 6), s 16 - Case stated answered in favour of appellant (2010/85SS - Charleton J - 19/5/2010) [2010] IEHC 165

Health Service Executive v Brookshore Ltd

WORDS AND PHRASES

"Roof" - Public Health Tobacco Act 2002 (No 2), s 47(7)(c) - Public Health (Tobacco) Amendment Act 2004 (No 6), s 16 - Case stated answered in favour of appellant (2010/85SS - Charleton J - 19/5/2010) [2010] IEHC 165

Health Service Executive v Brookshore Ltd

Statutory interpretation - Words and phrases - "roof" - Principles to be applied - Intention of legislature in enacting legislation - Whether structure covering portion of public house a roof - Public Health (Tobacco) Act 2002, section 47(7).

Facts the Public Health (Tobacco) Act 2002, as amended, introduces an offence of allowing smoking indoors in a public area. Section 47(7)(c) of the Act provides for an exception in the following terms:- "this section shall not apply toa place or premises, or a part of a place of premises, that is wholly uncovered by any roof, whether it is fixed or moveable". The District Court indicated that it intended to dismiss a prosecution brought against the respondent by the prosecutor on the basis that it was the occupier of a licensed premises where the unlawful smoking of tobacco occurred contrary to the Public Health (Tobacco) Act 2002, as amended. It recorded the reason for that decision as being its view that the awning covering the locus in question, being made from canvas or other non-solid material, could not amount to a roof within the meaning of the Act and that, therefore, the area was exempt by virtue of section 47(7)(c) of the Act of 2002, as amended. On the basis of that finding, the District Court asked the High Court the following questions in an appeal brought by the prosecutor by way of case stated:- (1) whether it was correct in determining that the covering being made of a non-solid material, could not be a roof within the meaning of section 47(7)(c) of the Act of 2002; (2) whether it was correct in determining that the material the covering was made from was a relevant and/or determining factor when deciding if the roof was a roof within the meaning of the Act; (3) whether it had been correct in dismissing the case having regard to those facts; (4) whether it had been correct to make an award of costs against the prosecutor. The respondent contended that the High Court had no jurisdiction to interfere with the District Court's finding that the structure in question was not a roof as it had been a finding of fact and not of law.

Held by Mr. Justice Charleton in answering the case stated as follows:- (1) that the part of the premises mentioned in the charge was covered by a moveable roof. It was not wholly uncovered by a roof or a retractable roof. The exception to the smoking ban therefore did not apply; (2) the material which made up a roof was irrelevant; (3) the correct law was as stated in this judgment. Any further findings of facts as to whether the prosecution had proved their case beyond reasonable doubt was a matter for the District Judge; (4) the District Judge had not been correct in making an award of costs against the prosecutor as it had been a prosecution brought in the public interest. The People (D.P.P.) v. Kelly [2007] IEHC 450 (Unreported, High Court, Charleton J., 19 December, 2007) applied.

1. That the meaning of a word as set out in a statute and the interpretation of the circumstances under which liability for a criminal offence could be established were matters of law. Proes v. Revenue Commissioners [1998] 4 I.R. 174 adopted. The purpose of the case stated procedure was to clarify matters of importance and the statutory mechanism whereby the District Court could seek the advice of the High Court or whereby its decision could be appealed by way of case stated placed a responsibility on the High Court to declare what the law was as clearly and accurately as possible.

2. That the High Court had to interpret the intention of the Oireachtas from the plain wording of the section, seen within the framework of the legislation. Inspector of Taxes v. Kiernan [1981] I.R. 117 applied. The Act of 2002 had been passed in the interests of public heath and used the word "roof" as an everyday expression, as opposed to a word that could have a slang meaning or one which had a technical implication to an expert. Whereas the provision created a criminal offence, the High Court was not entitled to construe it so as to extend the area of operation of that offence beyond that which the Oireachtas intended nor to strip it of meaning that the clear purpose of the legislation was undermined. That intention was to be found from the plain words of the statute set within its proper context. Any membrane covering the upper surface of a room which impeded the ready dispersal of tobacco smoke was a roof.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Charleton delivered the 19th day of May, 2010

2 1. What is a roof? This issue arises for consideration because in 2002 the Government banned smoking in a range of enclosed, as opposed to outdoor, public places, including public houses and restaurants. Some exceptions were allowed. For instance, the proprietors of establishments affected by the new law could erect an outdoor pagoda for smokers with a roof but which, under the law, had to have at least 50% of its walls missing. Another exception, the one I am concerned with, was allowed by law in relation to an unroofed area. Smoke tends to rise, after all, into the open sky. At issue here, as well, is whether a decision by a judge hearing a charge that a roof is not a roof is a finding of fact or a finding of law.

Case stated

3 2. The respondent runs a public house called Grace's Public House on Main Street in Naas, County Kildare. The Health Service Executive has powers of enforcement under the Public Health (Tobacco) Act 2002 as amended by the Public Health (Tobacco) Amendment Act 2004. The Health Service Executive people inspected Grace's Pub in April 2008. There was the usual bar and lounge inside, where no one was smoking. Then they went outside. They also found a completely enclosed laneway between two parts of the premises that was covered with a retractable canvas awning. It was furnished with bar stools and had nice varnished wooden counters on which there were ample numbers of ash trays. A large flatscreen television graced one of the end walls. It was here, perfectly legally as Grace's Pub contends, that its customers could while away their time watching the television, drinking pints and smoking; one might be tempted to say under other circumstances, to their hearts' content.

4 3. Two sets of photographs have been produced. These give a radically different picture of this attractive facility. In those produced by Grace's Pub, the awning is retracted, the bar stools are removed, ashtrays are absent, and the place looks like an alleyway on to the walls of which some narrow shelves have been attached. In the Health Service Executive photograph, from the time of the actual inspection, the area is completely enclosed; the canvas awning completely blots out the sky; bunting on strings advertises the fun of drinking Guinness porter "it's alive inside"; stools are present; and ash trays, notably absent in the other set of photographs, populate the shelves with actual cigarette stubs in them. It is clear to me that the Health Service Executive photographs represent what this area of the pub is like during business hours. The company that run Grace's Pub was charged on 16 ^th January, 2009, with this offence:-

"That on or about the 23 ^rd April 2008, you, the accused, were the occupier of Grace's Public House, 1 North Main Street, Naas, County Kildare, a specified place as defined by the Public Health (Tobacco) Act, 2002 and 2004 within the District Court area of Naas and within the functional area of the Health Service Executive,...