Supreme Court finds limited defence for selling alcohol to underage persons constitutional

About this case:

• Judgment:
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The specific issue in the appeal concerned 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”).

The company, Waxy O’Connors Ltd., had been charged under s.31 with selling alcohol to a person under 18, and under s.34 for allowing a person under 18 to be in the bar after 9pm, otherwise than on the occasion of a private function at which a substantial meal was served to persons attending the function.

The company was found guilty of the first offence and was charged a €1,500 penalty, and ordered to temporarily close the premises. It was acquitted of the second offence.

Section 31 initially provided for a due diligence defence, where a licensee charged with permitting another person (such as staff) to sell alcohol 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.

However, in 2000, this was amended s.14(1)(b) of the Act of 2000, which provided that it would be a defence to prove that an age card was produced.

In simple terms, therefore, it was for a licensee to show at trial, on the balance of probabilities, that the young person had produced an age card to the staff member who served or delivered the intoxicating liquor.

That this was both the intent and effect of the legislation is confirmed by contrast with the plain words of other provisions of the Intoxicating Liquor Code, which provided for less serious offences, where the “due diligence” or “reasonable ground” defences remained.

The company argued that the District judge erred in law in convicting it on the first charge, and should have construed s.31(4) of the Act, as amended, so as to allow for the defence of “due diligence”, as in the case of other offences.

Alternatively, it argued that if s.31(4) does not allow for such form of defence, the provision is invalid, being repugnant to Article 38(1) of the Constitution, as, 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 side issue, the Court noted that as the company had failed to bring any defence specific to the first charge during its trial, it was arguable that it did not have standing to make an argument of unconstitutionality. However, it was determined that it was preferable to decide the case on its merits, as it had importance beyond its own facts.

The High Court judge Herbert J. had initially determined that the “plain, literal and grammatical meaning of the words employed” meant “that there should be only the single indicated defence”.

He held that the nature of the defence, as set out in the new s.31(4), was, in fact, a form of due diligence, although now lawfully delimited by statute. He held that such delimitation did not constitute an impermissible infringement on the rights of an accused licensee, or prevent trial in due course of law, in accordance with Article 38.1 of the Constitution.

In a key finding, he concluded the offence in question was one of strict, rather than absolute, liability.

The question for the Supreme Court was whether a due diligence defence must be read into s.31(4); or alternatively whether s.31 is invalid, having regard to the provisions of the Constitution? In essence, a primary question comes down to whether the Oireachtas can delimit or define the defence of due diligence in the way it did?

The Supreme Court observed that what was in question was an offence of a “regulatory character”. It is truly a “public welfare” question. Though enforced as a penal law through the utilisation of the machinery of the criminal law, we are dealing here with “a liquor offence”. This is a matter which pre-eminently falls to be “regulated” by statute.

The Court also observed that a constitutional interpretation was to be presumed as the one intended by the Oireachtas.

The Court found that no legal basis has been asserted for finding, in this context, that it is not competent for the legislature to so delimit or define the nature of the defence of due diligence.

The company argued that the law must be “clear”, constitutionally speaking, on the nature of the offence and any possible defence, following King v. Attorney General I.R. 233, and argued that in this case it was unclear.

However, the Court disagreed, finding that the legislation reduces, but does not deprive the judge of the function of fact-finding and determining guilt. Instead, it re-defines the manner in which due diligence can be proved as a probability.

The question was therefore whether the amendment achieved its objective in a proportionate way, without denying the right to a constitutional trial.

The Court held, consequently, that the offence was one of strict liability, which frees the prosecution from having to prove the totality of mens rea, but affords an accused an opportunity to prove that due diligence had been exercised in the context of the regulated activity in question.

The Court stated that “There is no impermissible incursion on the judicial function. Rather, what is in question is a proportionate narrowing of parameters, where the defence provided for may be relied on in order that the regulatory legislation designed to meet a public good operates in an effective and just manner.”

Further, the Court observed that:

“There cannot be any doubt that under age drinking is a serious social problem with a wide and long-term impact on society as a whole. The common good requires that the law be structured and applied in a manner which achieves the end of preventing what is an undesirable practice; which may affect the health and wellbeing of young people, as well as those affected by the conduct of such young people who engage in drinking to excess. What is laid down is, to my mind, a proportionate legislative means of achieving that end.”

Finally, the Court addressed the argument that the ancillary order meant that the penalty involved far more than a fine, and altered the nature of the offence into the more “serious” category.

However, the Court found that the section drew a clear distinction between the penalty and the ancillary order, which could vary in accordance with circumstance. The nature and effect of the provision therefore did not alter the Court’s conclusions.

The appeal was therefore dismissed.