Court of Appeal in Northern Ireland Decisions

 


Neutral Citation No: [2012] NICA 45	Ref:	MOR8623
Judgment: approved by the Court for handing down	Delivered:	17/10/12
(subject to editorial corrections)

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ APPEAL BY WAY OF CASE STATED FROM A DECISION OF A RESIDENT MAGISTRATE ________ DIRECTOR OF PUBLIC PROSECUTIONS

Complainant/Appellant;

-and- JONATHON SMYLIE

Defendant/Respondent.

________ Before: Morgan LCJ, Girvan LJ and Coghlin LJ ________

MORGAN LCJ (delivering the judgment of the court)

[1] This is an appeal by way of case stated from the decision of His Honour Judge Rodgers on 6 January 2012 allowing the respondent's appeal against his conviction at Belfast Magistrates' Court on 28 July 2011 for permitting the consumption of intoxicating liquor in public house premises trading as Mynt Nightclub, Dunbar Link, Belfast other than during permitted hours on 20 December 2009, contrary to Article 41 (1)(a)(ii) of the Licensing (Northern Ireland) Order 1996.

[2] The questions of law for the determination of the Court Of Appeal are: –

1. Was I correct in law in holding that only a licence holder can commit an offence of permitting the consumption of intoxicating liquor in licensed premises other than during the permitted hours contrary to Article 41 (1)(a)(ii) and (2) of the Licensing (Northern Ireland) Order 1996?

2. Was I correct in law in holding that a manager or employee of licensed premises is not a person liable for an offence of permitting the consumption of intoxicating liquor in licensed premises other than during the permitted hours contrary to Article 41 (1)(a)(ii) and (2) of the Licensing (Northern Ireland) Order 1996?

3. Was I correct in law in holding that the respondent could not be prosecuted as he was not the licensee of the premises?

Background

[3] At approximately 2:30 am on 20 December 2009 police entered public house premises trading as Mynt Nightclub through the front doors at Dunbar Link, Belfast. They made their way to the first floor where there were approximately 100 persons on the premises. The bar was open and there were a number of persons serving behind it. A number of bottles of Smirnoff vodka were clearly visible behind the bar. Numerous people were drinking from various coloured plastic glasses.

[4] Sgt McCusker spoke to the respondent who identified himself as being in charge of the premises. The respondent was informed of police observations and cautioned for the offence of selling intoxicating liquor outside permitted hours and permitting consumption of intoxicating liquor outside permitted hours. After caution he replied "soft drinks only up to 0430. If you find any alcohol, it would have slipped through the net after 0100".

[5] The intoxicating liquor licence for the premises only permitted the sale of intoxicating liquor on the premises to 1 am. The 1996 Order provided for a further 30 minutes drinking up time. Two samples of customers' drinks were seized for analysis as the contents were believed to contain alcohol. The samples were found on forensic analysis to have an odour, appearance and alcohol concentration consistent with diluted spirituous liquor.

The statutory background

[6] Part II of the Licensing (Northern Ireland) Order 1996 (the 1996 Order) establishes the general licensing scheme for the sale of intoxicating liquor in Northern Ireland. A licence is issued to a fit and proper person, including a company, in respect of particular premises if deemed suitable. Part III of the 1996 Order establishes the permitted hours during which the sale and consumption of intoxicating liquor on the premises is permitted.

[7] The offence with which this case is concerned is that contained in Article 41.

"41. - (1) Except as permitted by or under this Order, a person shall not-

(a) himself or by his servant or agent-

(i) sell intoxicating liquor in licensed premises, or

(ii) permit the consumption of intoxicating liquor in licensed premises, or

(b) purchase intoxicating liquor in licensed premises, or

(c) consume intoxicating liquor in licensed premises, or

(d) take intoxicating liquor from licensed premises,

except during the permitted hours.

(2) Any person who contravenes this Article shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale."

The respondent was the deputy manager and person in charge of the licensed premises when police arrived at 2.30 am on 20 December 2009. The County Court Judge concluded that the offence under Article 41 (1)(a)(ii) could only be committed by a holder of a licence and accordingly allowed the appeal. He did not consider the mens rea associated with the offence.

[8] The structure of the section renders this conclusion surprising. The Article creates a number of offences which can be committed by "a person". These include the purchase of intoxicating liquor in licensed premises. Since it is difficult to see how the holder of the licence could purchase his intoxicating liquor from himself the person committing the offence must plainly be a customer. It follows that the meaning of "a person" in the Article must have a wider meaning than the holder of the licence. It is also plain that the offences of consuming intoxicating liquor and taking it from the premises outside the permitted hours are intended to catch customers. There is, therefore, no basis for the conclusion that "a person" should be given anything other than its ordinary and natural meaning.

[9] The offences under Article 41 (1)(a), unlike the other offences under that Article, can be committed by the accused's own conduct or by that of his servant or agent. It was submitted to the County Court Judge that the correct defendant should have been the licence holder. We accept that the licence holder can commit the offence through his servant or agent but that possibility does not prohibit proceedings against a person who was in charge of the premises if it is established that the person in charge permitted the consumption of intoxicating liquor outside the permitted hours. That conclusion is consistent with the outcome of the decision of this court in PPS v McGowan [2008] NICA 13. In that case 2 brothers, one the holder of the licence and the other the owner of the premises, were convicted of selling intoxicating liquor outside the permitted hours. The convictions of both were upheld although it is right to acknowledge that there was no argument that the offence could only be committed by the licensee.

[10] For the reasons set out we consider that the ordinary meaning of the statutory words indicates that a person in charge may be liable as a principal in his own right. Such a person may, however, also be liable as an aider and abettor by virtue of Article 59 of the Magistrates' Courts (Northern Ireland) Order 1981 which provides:-

"59. Without prejudice to any other enactment, a person who aids, abets, counsels or procures the commission by another person of a summary offence shall himself be guilty of that offence and may be tried and convicted (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him and may be tried either together with that other person or before or after that other person has been tried."

[11] That was the basis of the conviction in R (O'Hara) v Conlan [1909] ILTR 173 where a servant of the publican was convicted as an aider and abettor under the Petty Sessions (Ir.) Act 1851 for assisting his master in making a sale of intoxicating liquor at an unlawful hour.

[12] We have examined the remaining offences created within Part III to see whether they provide anything pointing towards the need for a strained construction of the straightforward language of Article 41. The other offences created within this Part are found in Article 47(7) and (8) dealing with extension licences for functions organized by the licence holder.

"(7) If the holder of an extension licence or any servant or agent of his sells intoxicating liquor in contravention of paragraph (4), the holder of the licence shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(8) An extension licence granted in connection with a function in any premises shall, at any time during the period of the function when intoxicating liquor is sold or made available for purchase or being consumed in the premises, forthwith be produced by the person who is in charge of the sale of intoxicating liquor there for examination by a constable at his request, and if it is not so produced without reasonable excuse the holder of the licence and that person shall each be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale."

[13] Article 47(7) restricts liability as principal for the sale of intoxicating liquor by the licence holder or his servants or agents contrary to the terms of an extension licence to the holder of the licence. A servant or agent may, of course, be liable as an aider or abettor. By contrast where the liability relates to the production of the licence on request by a constable the licence holder or the person in charge can be guilty of an offence as (principal). This demonstrates, therefore, that criminal liability as principals for different breaches of the licensing provisions may engage different persons and where the statute intends to restrict liability to a particular person or group of persons it does so.

[14] We consider that there is no reason to depart from the ordinary and natural meaning of the words in Article 41 and the County Court Judge erred in concluding that the offence under Article 41 (1)(a)(ii) of the 1996 Order could only be committed by the licensee. We, therefore, answer the first question "No". We do not consider that it is necessary to answer the remaining questions.