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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Robinson v Public Prosecution Service For Northern Ireland [2012] NICA 37 (25 September 2012)
URL: http://www.bailii.org/nie/cases/NICA/2012/37.html
Cite as: [2012] NICA 37
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| Neutral Citation No: [2012] NICA 37 | Ref: | GIR8579 |
| Judgment: approved by the Court for handing down | Delivered: | 25/09/12 |
| (subject to editorial corrections)* |
BETWEEN:
Appellant-Defendant
Respondent-Complainant
GIRVAN LJ
Introduction
[1] This appeal comes before the court by way of a case stated from Her Honour Judge McReynolds who upheld the defendant/appellant's conviction by District Judge McNally of an offence of permitting the consumption of intoxicating liquor outside permitted hours on 25 November 2010 on licensed premises known as The Tipplers Brook, The Brook, Enniskillen contrary to Article 41(1)(a)(ii) and 41(2) of the Licensing (Northern Ireland) Order 1996 ("the 1996 Order").
[2] The case stated poses two questions for the consideration of the court:
(i) Was the court correct in law in convicting the appellant of the offence of permitting the consumption of intoxicating liquor on licensed premises on 25 November 2010 other than during permitted hours contrary to Article 41(1)(a)(ii) and Article 41(2) of the 1996 Order?
(ii) Was the court correct in law in concluding that, given that neither musical or other entertainment nor substantial refreshment had been provided at the said premises on the occasion in question, the permitted hours ended at 11.00pm on 24 November 2010?
The Relevant Findings of Fact
[3] The learned judge found the following facts:
(a) PC McCrystal, a uniformed officer of the PSNI, visited the licensed premises on 25 November 2010 to check the premises. He saw alcohol being consumed on the premises at that time.
(b) No music or other entertainment was being provided and substantial refreshment was not being provided. No entertainment or substantial refreshment had been provided to the patrons at any stage during the evening in question.
(c) The appellant was the licensee for the licensed premises at the time. The premises had a relevant liquor licence as a public house which permitted the sale and consumption of alcohol within the general permitted hours that is to say until 11.00pm on a week night.
(d) The licence had the benefit of an order for additional permitted hours which had been granted on 1 September 1997 and was expressed as being in force until revoked. That order provided that:
"The court of summary jurisdiction on 1 September 1997 by order made under Article 44 of the 1996 Order directed that the following specified days Monday to Sunday other than on Christmas day, Easter Day or Good Friday, in the licensing period commencing on the 1st day of October 1997 in the part(s) of the premises specified below on week days the hours from 11.00 in the evening to 1.00 in the morning of the day next following … shall in addition to the hours mentioned in Article 42 of the said order be included in the permitted hours for the premises."
The judge's conclusions
[4] In paragraph 12 of the case stated the learned judge stated:
"I rejected the appellant's submissions. As I had concluded as a fact that the appellant had at 12.30am on 25 November 2010 permitted the consumption of intoxicating liquor on his premises I did not consider that the fact that his licence included an additional hours certificate permitting such until 1.00am was relevant in the circumstances. This addition was subject to the unsatisfied requirement that entertainment or refreshment be provided during such consumption. As I had concluded as a fact that neither entertainment nor refreshment were being/had been provided, the applicable permitted hours on the evening in question were the general permitted hours as defined in Article 42 namely until 11.00pm."
The relevant statutory provisions
[5] Under Article 41 of the 1996 Order it is an offence to sell intoxicating liquor in licenced premises or to permit its consumption in such premises outside the permitted hours. Article 42 defines the general permitted hours. Subject to special provisions for Sundays, Christmas Day and Good Friday and for off-licences and places of public entertainment (as defined in Article 2) the general permitted hours are between 11.30am and 11.00pm.
[6] Special provision for additional permitted hours is made in Article 44. So far as material Article 44 provides:
"44.–(1) Subject to Article 17(3), where part or parts of premises, which are or include premises to which this Article applies, are structurally adapted and used, or intended to be used, for the purpose of habitually providing, for the accommodation of persons frequenting it, such entertainment or refreshment as is mentioned in paragraph (2)(i), (ii) or (iii) and the sale of intoxicating liquor is ancillary to that entertainment or refreshment –
(a) a county court which grants a licence or declares a licence provisionally granted to be final, on the application of the person applying for the grant or declaration, or
(b) a court of summary jurisdiction, at any time, upon the application of the holder of the licence for those premises made in compliance with the procedure set out in Schedule 9,
may make an order under this paragraph.
(2) An order under paragraph (1) may direct that, on such days as may be specified in the order, the hours-
(a) on week-days from 11 in the evening to 1 in the morning of the day next following, and
(b) on Sunday, not being 31st December, from 10 in the evening to 12 in the evening, and
(c) on Sunday, being 31st December, from 10 in the evening to 1 in the morning of the day next following,
shall, in addition to the hours mentioned in Article 42(1), be included in the permitted hours for any such part or parts of the premises specified in the order for the purposes of the sale, before the provision of-
(i) musical or other entertainment; or
(ii) substantial refreshment; or
(iii) both such entertainment and refreshment;
has ended, of intoxicating liquor for consumption on any such part or parts of the premises, and the consumption of such liquor.
(3) A court shall not make an order under paragraph (1) unless it is satisfied that-
(a) the business will be conducted during the hours mentioned in paragraph (2) and any period immediately following their termination in such a manner as not to cause undue inconvenience to persons residing in the vicinity of the premises; and
(b) the hours mentioned in paragraph (2) will not cause undue inconvenience to persons residing in the vicinity of the premises.
(4) An order under paragraph (1) may be revoked by a court of summary jurisdiction on the application of the holder of the licence.
(5) Where, upon complaint made under Part VIII of the Magistrates' Courts (Northern Ireland) Order 1981, a court of summary jurisdiction is satisfied-
(a) that the business carried on in premises to which an order under paragraph (1) applies is being conducted during the hours mentioned in paragraph (2) or any period immediately following their termination in such a manner as to cause undue inconvenience to persons residing in the vicinity of the premises; or
(b) that such hours are causing undue inconvenience to persons residing in the vicinity of the premises; or
(c) in the case of a complaint made by the sub-divisional commander of the police sub-division in which the premises are situated, that the specified part or parts of the premises are not being used for the purpose of habitually providing entertainment or substantial refreshment or both entertainment and substantial refreshment, as the case may require,
the court may-
(i) revoke the order; or
(ii) modify the order or, in relation to the order, the hours mentioned in paragraph (2); or
(iii) make the continuance of the order subject to such terms and conditions as the court thinks fit.
(6) Nothing in this Article shall permit an order under paragraph (1) to authorise the sale of intoxicating liquor-
(a) on Christmas Day, Easter Day or Good Friday, or
(b) to a person admitted to the premises-
(i) less than 30 minutes before the end of the hours mentioned in paragraph (2), or
(ii) where the provision of entertainment or substantial refreshment or both entertainment and substantial refreshment is due to cease before the end of those hours, less than 30 minutes before that cessation.
(7) Nothing in paragraph (2) shall require the provision of substantial refreshment during the 30 minutes before the end of the hours mentioned in that paragraph.
(8) In this Article "entertainment" does not include any form of entertainment given otherwise than by persons actually present and performing.
(9) No part of any premises shall be treated for the purposes of this Article as used, or intended to be used, for the purpose of habitually providing entertainment or substantial refreshment or both entertainment and substantial refreshment unless it is used, or intended to be used, for the purpose of providing such entertainment or refreshment during the hours mentioned in paragraph (2) and for a substantial period preceding the end of the general permitted hours mentioned in Article 42(1) on every day or on particular days in every week, any break for a period or periods not exceeding 2 weeks in any 3 successive months, or on any special occasion, or by reason of any emergency being disregarded.
(10) The premises to which this Article applies are-
(a) an hotel;
(b) a restaurant;
(c) a conference centre;
(d) a higher education institution;
(dd) an indoor arena;
(e) any part of premises of a kind mentioned in Article 5(1)(a) which, in the case of a part specified in an order under paragraph (1) where substantial refreshment is to be habitually provided, are structurally adapted and used, or intended to be used, for the purpose of providing persons frequenting the premises with a main table meal at midday or in the evening or both."
[7] Under Article 46 where intoxicating liquor is sold on licensed premises during the permitted hours Article 41 does not prohibit or restrict the consumption of alcohol during the first 30 minutes after the conclusion of the permitted hours. This is known as "drinking up time".
[8] Provision is also made in the 1996 Order for an extension licence for premises specified by order of the court as suitable for functions organised by appropriate bodies such as charitable bodies or clubs and for functions organised by the licence holder (though the latter category is limited to a maximum of six per year). These extension licences may be granted by a court of summary jurisdiction and permit the sale of intoxicating liquor during hours analogous to the extended hours provided for in Article 46. Article 47(4) makes clear that an extension licence holder under that provision shall not authorise the sale of intoxicating liquor otherwise than as an ancillary to a relevant function. It is an offence for him to do so. Provision is also made in Article 45 for the authorisation by a sub-divisional commander of the relevant police sub-division of applications for analogous extended hours on any one occasion. Not more than 20 authorisations may be granted under that article to any licence holder in a year.
The decision in DPP v Drumm
[9] In an admirably clear and well reasoned decision reported at [2011] NI Mag District Judge McNally scrutinised the statutory provisions relevant in the present appeal and he concluded that a licensee would be guilty of an offence of selling or permitting the consumption of intoxicating liquor even if he had the benefit of additional hours granted under Article 44 if the licensee was providing no entertainment or refreshments to which the sale of alcohol was ancillary. This appeal raises the question whether he was correct in that conclusion.
The parties' contentions
The case for the appellant
[10] Mr Hutton for the appellant contended that the District Judge at first instance and on appeal the learned judge wrongly concluded that the appellant had committed an offence. He relied on the wording of the order of 1 September 1997 which he contended made clear that the permitted hours had been extended to 1.00am and that the extension of hours was not dependant on the provision of entertainment. Although not mentioned in the case stated, counsel argued that in fact on the uncontradicted evidence of the appellant on the night in question the appellant had arranged for a performance of live entertainment but the performer had let him down. In following the approach which had been adopted by District Judge McNally in PPS v Drumm the judge erred. The correctness or otherwise of Drumm turned on the proper interpretation of Article 44 of the 1996 Order. Counsel accepted that the spirit of the grant of extended time under Article 44 envisaged that the extended hours would be ancillary to and related to the provision of music or other entertainment and/or substantial refreshment but he contended that a failure to provide such facilities did not mean that the licence holder was committing an offence. Article 44 was aimed at authorising extended hours where the licence holder was habitually providing entertainment and a one-off failure to provide entertainment did not mean that the licence holder was in breach of his obligation to habitually (ie regularly) provide entertainment. One-off failure to provide entertainment did not attract criminal sanctions. A failure to provide habitual entertainment could lead to an application to revoke the order providing for additional hours but that was a civil, not a criminal law matter. Such failure to provide entertainment could be caused by emergencies or accident or by a performer letting down the licence holder as had occurred in the present case. Counsel referred to the analogous provision of the special hours certificates provided for in sections 76-83 of the former Licensing Act 1964 in England and Wales. He called in aid what Carnwath J said in Spence v Superintendent of South Yorkshire Police (CO-421-95) namely that when the special hours certificate is in force the permitted hours are automatically extended by virtue of section 76 of the 1964 Act and, subject to any specific limitation, there will be periods when drinking can take place even though it is not ancillary to music or dancing or the taking of refreshment. Counsel accepted that Article 44(2) provides that the additional permitted hours shall be included in the permitted hours for the purpose of the sale of intoxicating liquor before the provision of entertainment has ended. This was, he contended, descriptive and declaratory but did not override the actual extension until 1.00am. Counsel further argued that in R v Stafford Crown Court ex parte Shipley [1998] 1 WLR 1438 Henry LJ noted that while the sale of intoxicating liquor outside permitted hours is an offence there is no offence if there was a sale of liquor which was not ancillary to entertainment or refreshment. The sanction and only sanction provided for was the revocation of the special hours certificate. He further relied on Northern Leisure v Scoffield [2001] LLR 167 in which Mr Beatson QC sitting as a deputy judge stated that the only sanction for the sale of drink in such circumstances was revocation of the special hours certificate. Counsel also relied on what Nicholson LJ said in Armagh & District Council v PSNI [2003] NIQB 28. He granted an Article 44 Order and stated that the provisions of Article 44 (3), (5) and (9) of Article 44 and especially (5) ensured or should ensure that additional permitted hours were not abused. By necessary implication counsel argued that Nicholson LJ did not envisage prosecution for the offence of selling outside permitted hours. Counsel contended that the legislation did not make clear that it was an offence to sell alcohol or permit its consumption when its consumption was not ancillary to the provision of entertainment or refreshment. Applying the principles of doubtful penalisation he contended that it had not been sufficiently clearly established that an offence existed.
The case for the respondent
[11] Mr Steer for the respondent submitted that Article 41 made it an offence to permit the sale or consumption of intoxicating liquor except during the permitted hours. The appellant had the benefit of an order for additional permitted hours under Article 44 but Article 44(2) only made the extension time a permitted time for consumption before the provision of entertainment-refreshment had ended. The court in Drumm correctly concluded that Article 44(2) clearly linked the exercise of the right to sell alcohol between 11.00pm and 1.00am and the continuation of the provision of entertainment or refreshment to which the provision of alcohol was ancillary. Counsel called in aid the wording of Article 44(9) and Article 44(6)(b)(ii). This latter provision clearly precluded the sale of liquor to new comers less than 30 minutes before the cessation of the provision of entertainment. If the appellant's case was correct Articles 42 and 44(6)(b) and Article 49 would be otiose. The judge found that on the night in question no entertainment was provided. The appellant could not rely on the fact that entertainment was being provided to justify making use of his right to sell alcohol beyond 11.00pm. He therefore was guilty of an offence under Article 41. Counsel contended that the English case law related to a quite different statutory regime. He did, however, rely on Carter v Broadbeer [1975] 1 WLR 1204. In that case the court considered the definition of a "bar" and the area to which a special hours certificate applied. The appellant's conviction for selling intoxicating liquor after prescribed hours was upheld as the sale took place in an area not in accordance with the terms of the special hours certificate and the sale of the alcohol in that area was not ancillary to the provision of music and dancing and substantial refreshment.
Conclusions
[12] For a court to make an order under Article 44(1) it must be satisfied that part or parts of the premises to be licensed (a) are structurally adapted for the purpose of habitually providing entertainment (by live performance) and/or substantial refreshment; and (b) the relevant premises or part thereof were used or were intended to be used habitually for such purpose. A court granting an Article 44 application must thus examine (a) the suitability of the premises and relevant part proposed to be so used; and (b) the use or intended use of the premises so that the court could satisfy itself that the applicant did genuinely intend to use the relevant part of the premises for the permitted purposes on a habitual basis. In considering the use and proposed use of the premises or relevant part in the context of the need to establish habitual use the court must consider the days when the habitual use would occur. If the evidence showed a use or intended future or continued use only on a limited number of nights in the week the court could not be satisfied that the person qualified for additional permitted hours on every night of the week. The order should thus restrict the permitted additional hours to the nights when it was established that the use would be habitual. In Drumm District Judge McNally was thus right to be concerned that:
"Article 44 is commonly abused throughout the jurisdiction and applicants frequently apply for an Article 44 extension from Monday to Sunday inclusive even though they do not intend to regularly utilise same by the provision of live entertainment on each of these nights."
[13] The order made on 1 September 1997 was unsatisfactory in its failure to define clearly the part of the premises to be covered by the Article 44 Order. Nor did the wording of the order follow the statutory wording envisaged by Article 44(2). Nevertheless, the order made on 1 September 1997 is not itself the subject of legal challenge in these proceedings though it may be that the order in its present form could be revoked since the licence holder, as Mr Hutton explained, only provides entertainment on a limited number of nights each week. This case, however, must be decided in the light of the order as made and on the assumption that the presently unchallenged order is correctly made.
[14] An order under Article 44 falls to be applied and construed in the light of the statutory context in which it is made. In the making of the order the court could not exceed its jurisdiction. Article 44(2) shows that an order under Article 44(1) may direct the days and the hours to which it will apply. In defining the additional hours during which alcohol may be sold beyond the general permitted hours the court is doing so in order to permit the sale of alcohol outside the normal permitted hours and in the circumstances permitted and defined by the statute. Article 44(2) permits the extension of hours:
(a) for the relevant part of the premises specified in the order; and
(b) before the provision of entertainment and/or substantial refreshment has ended.
The words "before the provision has ended" make clear that the permitted extension of time is not a general extension divorced from the purpose of such additional permitted hours. Such orders are intended to make lawful that which would otherwise be unlawful and to do so in the context of the statutory basis for providing additional time to licence holders, namely the facilitation of entertainment and/or substantial refreshment to which the sale of alcohol is ancillary and thus subservient. "Before the provision is ended" points to the consumption of alcohol during the period of entertainment and it could have been equally well expressed as "until the conclusion of the entertainment."
[15] Article 44(6)(b)(ii) clearly supports this interpretation of the legislation and closely links the period of the provision of the entertainment and/or refreshment and the sale of alcohol. Where the entertainment is to cease before the end of the maximum permitted hours the admission of drinkers must cease 30 minutes before the end of the entertainment. Thus, if the maximum permitted time is 1.00am but the entertainment ceases at 12.00 midnight no admission after 11.30am is permitted. If on the other hand the entertainment is to continue until 1.00am admission up to 12.30 is permitted. Mr Hutton's argument that Article 44(6) supports his approach does not stand up to analysis and would produce an absurd outcome in that, if a licence holder with an additional hours order is providing no entertainment, on Mr Hutton's argument he may admit drinkers up to 12.30 whereas if actually providing entertainment he could not admit drinkers less than 30 minutes before the cessation of the entertainment.
[16] Mr Hutton strongly relied on the existence of a power of revocation of an Article 44 order if it was being abused and he argued that that negated any separate criminal liability for selling alcohol on occasions when no entertainment was being provided. An Article 44 order serves the purpose of establishing (a) the suitability of the premises or relevant part for the provision of entertainment/refreshment during the extended period and (b) the habitual use of the premises for such purpose. Once granted the licence holder is not restricted to seeking an Article 45 extension which can in any event only be granted on a limited number of occasions in the year. If the licence holder is abusing his right to have the benefit of an Article 44 Order that order can be revoked. That does not mean that while it is in place he has complete freedom as to how he operates it. There is no sensible reason why Article 44 should be construed as precluding a criminal sanction for using the premises to sell alcohol beyond the normal opening hours on occasions when there is no entertainment or refreshment being provided to which the sale of the alcohol can properly be regarded as ancillary. The approach for which Mr Hutton contends would moreover confer on the licence holder providing no entertainment an unfair advantage against other licence holders restricted to operating within normal permitted hours.
[17] The English statutory provisions to which counsel referred are not truly analogous to the Northern Ireland legislation and, accordingly, the English authorities do not provide any real assistance on the proper construction of Article 44 read in its overall statutory context. The special hours certificate provisions which were in force in England and Wales (but which have since been replaced by different legislation) differed from the Northern Ireland provisions in that under the English statutory scheme the special hours certificate specified and fixed separately permitted operating hours for the relevant premises. These did not operate simply as added additional permitted hours on top of and closely linked to the general permitted hours. The present case, accordingly, falls to be determined in accordance with the quite different statutory context in Northern Ireland.
[18] District Judge McNally in Drumm in paragraph 16 properly identified the appropriate guidelines which should be followed in relation to Article 44 applications. Thus he stated:
"At this stage it may be helpful to set out the guidelines as to the practical effect of Article 44 in regard to the provision of musical or other entertainment for the assistance of licensees in keeping within the law and for police in the exercise of their duty to ensure the law is complied with –
a. When making an application under Article 44 a licensee should only include such days for which he intends to habitually provide live entertainment.
b. If live entertainment is provided intoxicating liquor may be sold up to 1.00am and consumed up to 1.30am as ancillary to the provision of the live entertainment.
c. If no live entertainment is provided intoxicating liquor may only be sold up to 11.00pm and consumption is permitted only up to 11.30pm.
d. If no live entertainment is habitually being provided on nights for which an extension has been granted the police may apply to revoke or modify the order subject to the matters which may be disregarded in Article 44(9)."
[19] We agree with those observations and would add the following additional observation. Care should be taken by the court in relation to the drafting of the Article 44 Order. The Order should clearly identify the days during which the entertainment/refreshment is or are to be habitually provided and the part of the premises to be covered by the Article 44 Order (which did not happen in the present instance). If a map is to be used to identify the relevant portion this should be retained with the licence. The wording of the Order should adopt and follow the statutory provisions of Article 44 and thus make clear beyond peradventure that the extension of hours permits the sale of and consumption of alcohol only up until the conclusion of the musical or other entertainment, the provision of substantial refreshment or both.
Disposal of the appeal
[20] The questions posed by the learned County Court Judge must be answered in the affirmative.