Saturday 16 December 2017

Pub found guilty of allowing drink be supplied to under-age girl loses Supreme Court appeal

Alcohol, stock photo
Alcohol, stock photo

Tim Healy

A PUB found guilty of allowing drink be supplied to an under age girl has lost a Supreme Court appeal which centred on its claim the charge should have been dismissed because it had exercised "due diligence" in assessing whether she was old enough to be served alcohol.

Waxy O'Connors Ltd, trading as Waxy's Bar, Marlboro Street, Cork, was convicted in the District Court of allowing the 17-year-old to be supplied with beer in April 2006, contrary to the Intoxicating Liquor Acts 1988 and 2000.  A second charge of permitting her to be in the bar was dismissed.

Waxy's claimed she had produced an age card with a fuzzy photo to try to gain entry and was refused by a doorman.  He did allow her in but did so when she produced a passport and driver's licence, both of which, it turned out, did not belong to her.

A garda who came to the pub challenged the girl and after about ten minutes she owned up to not being the person on the identity documents.

After it was convicted, the pub was ordered to close for 11 days which, Waxy's said, would lead to the loss of around €14,000 in profits and additional wage costs of €2,980.

Waxy's took judicial review proceedings in the High Court which dismissed the challenge.

The judge said the production of a garda-approved age card, and not any other grounds for believing a person was of drinking age, was the only defence the pub could make to the charge.

Waxy's appealed that decision to the Supreme Court.

It argued the District Judge had erred in law because he should have construed the supplying of drink charge so as to allow for the defence of "due diligence" - as had been applied in relation to the dismissed charge of allowing her to be on the premises.

The DPP opposed the appeal.

In a judgment on behalf of a five-judge Supreme Court, Mr Justice John MacMenamin affirmed the High Court decision.

He said the defence case, in the District Court, hinged entirely on showing Waxy's used due diligence in preventing young people getting access to the pub.

However, there was no evidence in relation to the barman who served the drink having actually asked for an age card "or even having exercised any due diligence" in finding out her age, he said.

Waxy's, a member of the Vintner's Federation of Ireland (VFI), had asserted its concerns on behalf of the the organisation that other prosecutions might be brought which precluded the "due diligence" or "reasonable steps"  defence, the judge said.

As a matter of law, Waxy's did not have standing in law to assert third party rights, but it was preferable for the court to deal with the case on its merits because it was one that had an importance beyond its own facts, he said.

Waxy's had argued that, in the absence of a due diligence defence, as contained in the 1988 Intoxicating Liquor Act, and amended by the Act of 2000, created an offence of strict liability which was constitutionally invalid.

Mr Justice MacMenamin said the 1988 Act enjoys a presumption of constitutionality and the onus was on the pub to establish otherwise.

The presumption had not been displaced, he said. It is not unconstitutional for the legislature, in an offence in this category, "to proportionately delimit the defence of reasonable care or due diligence to a specified minimum standard."

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