Waxy O'Connors Ltd v Riordan
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 08 June 2016 |
| Neutral Citation | [2016] IESC 30 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 6 of 2010],[Appeal No. 06/2010] |
| Date | 08 June 2016 |
[2016] IESC 30
THE SUPREME COURT
MacMenamin J.
[Appeal No. 06/2010]
McKechnie J.
Clarke J.
MacMenamin J.
Laffoy J.
Dunne J.
AND
Due diligence – Judicial review – Absolute liability – Appellant seeking judicial review – Whether respondent erred in law in convicting the appellant
Facts: The appellant, Waxy O'Connors Ltd, was convicted in the District Court of the charge that on 22nd April, 2006 at Waxy?s Bar, 2 Marlboro Street, Cork, being the holder of a licence authorising the sale of intoxicating liquor, it permitted a person to supply intoxicating liquor on the premises to a person under 18 years of age contrary to s. 31(1) and (3) of the Intoxicating Liquor Act 1988. The company brought judicial review proceedings. The application was dismissed in the High Court. The company appealed that decision to the Supreme Court. The appellant contended that the respondent District judge erred in law in convicting the appellant and should have construed s. 31(4) so as to allow for the defence of due diligence, as in the case of other offences, such as the dismissed charge under s. 34 of the 1988 Act. Alternatively, the argument was made that if s. 31(4) does not allow for such form of defence, the provision under which the appellant was convicted was invalid, being repugnant to Article 38(1) of the Constitution, as, it was said, it is an offence of absolute liability, and that a trial on such a charge is not a trial in due course of law. As a corollary of its case, the appellant also submitted that, in the absence of a due diligence defence, as originally defined in the 1988 Act, the new amendment of 2000 created an offence of absolute liability, which, the appellant claimed, is constitutionally invalid, by analogy with the decision in?CC v Ireland?[2006] 4 IR 1.
Held by MacMenamin J that the age card to be produced is as defined in s. 30 of the 1988 Act, meaning a card issued under s. 40 of the same Act which provides that a Minister may, by regulation, provide for the issue to a person, of or over the age of 18 years, a card specifying the age of that person. MacMenamin J held that this case did not concern a person under the age of 18 years who proffered a card which was valid on its face. MacMenamin J held that the penalty demonstrated that the charge related to a minor and regulatory matter; the phraseology of the provision distinguished between the penalty and any consequential executive or administrative order, which may have to be applied by the court alone, dependent upon the circumstances and gravity.
MacMenamin J held that he would affirm the order of the High Court and dismiss this appeal.
Appeal dismissed.
On more than one occasion, the Oireachtas has sought to address the prevalence of selling alcoholic drink to under age persons in licensed premises. This judgment concerns amendments to the law for that purpose enacted in the year 2000. The intent behind those amendments, now the focus of this judgment, was to place an added onus on licensees of public houses to take appropriate measures to prevent this serious social problem. In cases of doubt, licensees or their staff were to require a young person to produce an age card. Proof of production of the card would be the single defence on a charge of sale or allowing sale of alcoholic drink to under age persons.
The fact that the pre-amendment regulatory regime was difficult to implement, and had failed in its objective, is beyond controversy. In fact, even a director of the appellant company (?the company?), Rea Kennedy, confirmed this fact in an affidavit sworn herein. He deposed that under age persons ? targeted? licensed premises, including the bar concerned in this appeal.
The question which arises, however, is whether, in limiting the defence the legislature strayed into unconstitutionality.
The issue in this appeal specifically concerns the plain meaning of section 31 of the Act of 1988, as amended by s.14 (1) (b) of the Intoxicating Liquor Act 2000 (?the Act of 2000?). This judgment concerns the law extant at the time of the events described herein.
The appellant company herein was charged that:
?On 22nd April, 2006 at Waxy's Bar, 2 Marlboro Street, Cork in the Court area, and District aforesaid, being the holder of a licence authorising the sale of intoxicating liquor did – permit a person to supply intoxicating liquor to wit Budweiser Beer on your premises to one (AB), a person under 18 years of age contrary to s.31(1) and (3) Intoxicating Liquor Act, 1988, as amended by s.14 and 25 of the Intoxicating Liquor Act, 2000.?
It was convicted of this charge. This will be referred to as ? the first charge?.
The appellant was also charged that:
?On 22nd April, 2006 at Waxy's Bar, 2 Marlboro Street, Cork in the Court area and District aforesaid being the licence holder of Waxy's, 2 Marlboro Street, Cork, a licensed premises did allow (AB) and CD, a person over the age of 15 and under the age of 18 to be in the bar of a licensed premises after 9 p.m. otherwise than on the occasion of a private function at which a substantial meal was served to persons attending the function, contrary to s.34 of the Intoxicating Liquor Act, 1988, as substituted by s.14 of the Intoxicating Liquor Act, 2003.?
This will be referred to as ? the second charge?, on which the appellant was acquitted.
Having been convicted of the first charge in the District Court, the company brought judicial review proceedings, which application was dismissed in the High Court by Herbert J. The company has appealed that decision to this Court.
To understand the true issue in the appeal, it is necessary to take s.31(1) of the 1988 Intoxicating Liquor Act as a starting point. This provides as follows:
?The holder of any licence shall not -
(a) sell or deliver or permit any person to sell or deliver intoxicating liquor to a person under the age of 18 years,
(b) sell or deliver or permit any person to sell or deliver intoxicating liquor to any person for consumption on his licensed premises by a person under the age of 18 years,
(c) permit a person under the age of 18 years to consume intoxicating liquor on his licensed premises, or
(d) permit any person to supply a person under the age of 18 years with intoxicating liquor on his licensed premises.? (Emphasis added)
The charge on which the appellant was convicted was an offence under section 31, subsection 1, paragraph (d) (emphasised above).
For completeness, s.31(2) provided:
?The holder of a licence of any licensed premises shall not sell or deliver or permit any person to sell or deliver intoxicating liquor to any person for consumption off his licensed premises by a person under the age of 18 years in any place other than a private residence.?
As originally enacted in 1988 s.31(4) provided for a ? due diligence? defence to the offences defined, inter alia, in s.31 (1) (a) to (d), outlined above. The following two forms of defence were, therefore, provided for in the original s.31(4):
?In any proceedings against a person for a contravention of subsection ( 1) or (2) of this section, it shall be a defence for such person to prove that the person in respect of whom the charge is brought produced to him an age card relating to such person or that he had other reasonable grounds for believing that such person was over the age of 18 years, or, if the person is charged with permitting another person to sell or deliver intoxicating liquor contrary to the said subsection ( 1) or (2), to prove that an age card was produced by the person concerned to that other person or that that other person had other reasonable grounds for believing as aforesaid.? (Emphasis added)
Up to the year 2000, therefore, when the law was amended, a licensee brought to Court on a charge of permitting another person (such as a staff member) to sell or deliver intoxicating liquor on licensed premises could avail of the following defences; (a) that the young person had produced an age card relating to himself/herself to the person who supplied the intoxicating liquor, or (b) that the person who supplied the alcohol to the under age person had other ? reasonable grounds? for believing that the customer was over 18 years of age. The standard of proof on the licensee in either case was on the balance of probabilities.
By virtue of s.14(1)(b) of the Act of 2000, however, s.31(4) of the Act of 1988 was amended, so as to re-define the available defence, in the following limited way:
?(b) by the substitution of the following for subsection (4) -
(4) In any proceedings for a contravention of subsection ( 1) or (2) of this section, it shall be a defence for the defendant to prove that the person in respect of whom the charge is brought produced to him or her an age card relating to that person or, if the defendant is charged with permitting another person to sell or deliver intoxicating liquor contrary to either of those subsections, to prove that an age card relating to the person to whom the intoxicating liquor was sold or delivered was produced by that person to that other person.?. (Emphasis added)
In terms, therefore, s.14 (1) (b) of the Act of 2000 was intended as a ? substitute? for the original s.31 (4) of the Act of 1988, which previously allowed for more than one form of defence. There can...
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Kennedy v DPP
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