Court dismisses appeal against temporary closure order, distinguishing it from a criminal penalty in a public welfare offence.

THE SUPREME COURT

[Appeal No. 06/2010]

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

BETWEEN:

WAXY O’CONNORS LIMITED

APPLICANT/APPELLANT

-v-

JUDGE DAVID RIORDAN

RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 8th day of June, 2016

Background

1. 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.

2. 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.

3. The question which arises, however, is whether, in limiting the defence the legislature strayed into unconstitutionality.

4. 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.

5. 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”.

6. 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.

7. 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.

The Charge where there was a Conviction: The Law

8. 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).

9. 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.”

Section 31(4) as Enacted

10. 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)

11. 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.

The form of defence available to the appellant, s.31(4) as substituted

12. 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)

13. 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 be no suggestion that the plain words of this amendment are

either a supplement, or a complement, to the previously existing defences. The words used in the Act of 2000 are quite specific: they

are that, it shall be “a defence”. There is no ambiguity. No interpretative significance can be attached to the use of the word

“supply” in s.31 (1) (d), by way of distinction to the words “sell or deliver” in s.31 (4) of the Act of 1988. That is a distinction

without a difference. The actual difference lies in the fact that the words of the amended statute expressly delimited the precise

nature of the one, singular, defence to be thenceforth available, and the parameters of evidence to be adduced in evidence. 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.

14. Taken in context, considering the words used, and the range in gravity of the charges, therefore, one can discern a nuanced

legislative response to allow for defences which took a number of different forms, dependent upon the nature and seriousness of the

offence.

15. The appellant company was charged with “permitting” a person, that is a barman, to supply a young person (here called AB), with

intoxicating liquor on the premises. Proof of the offence consisted in proving the company permitted the barman to supply intoxicating

liquor to the under aged customer in question.

Penalties

16. Section 31(3) of the Intoxicating Liquor Act, 1988, as amended by s.14 of the Intoxicating Liquor Act, 2000, provided for

penalties in the case of the instant offence. This then allowed for a maximum fine of €1,500, which penalty was imposed on the

appellant. The maximum penalties have subsequently been amended by statute, but such amendments are not material here.

Ancillary Order

17. In addition to that penalty, the District Court made an ancillary order, pursuant to s.36A of the Act of 1988, as amended by s.13

of the Act of 2000, directing that the premises be subject to a temporary closure order for 11 days.

18. I turn now to the second charge on which the appellant was acquitted. Section14 of the Intoxicating Liquor Act 2003, substituted

a new s.34 to the 1988 Act, so as to restrict the presence of persons under the age of eighteen years being present in bars in the

following terms:

“34(1) The holder of a licence of licensed premises shall not, subject to subsections (2) to (4) of this section, allow a

person under the age of 18 years to be in the bar of the licensed premises at any time.

…

(3) It shall not be unlawful for such a holder to allow a person who is aged at least 15 years but under the age of 18

years to be in the bar between 10.30 a.m. (12.30 p.m. on Sundays) and 9.00 p.m.

(4) It shall not be unlawful for such a holder to allow a child who is accompanied by his or her parent or guardian or a

person who is aged at least 15 years but under the age of 18 years to be in the bar on the occasion of a private

function at which a substantial meal is served to persons attending the function.”

To this, the amended sub-section (8) provided a defence as follows:

“8. In any proceedings against the holder of a licence of licensed premises for a contravention of subsection (1) of this

section it shall be a defence to prove that the holder used all due diligence to prevent the person concerned from being

admitted to or remaining in the bar.”

The charge under this section was dismissed. It allowed for a “due diligence” defence.

The Appellant’s Case

19. The appellant contends that the respondent District judge erred in law in convicting the appellant 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,

such as the dismissed charge under s.34 of the Act of 1988, as substituted by s.14 of the 2003 Act. Alternatively, the argument is

made that if s.31(4) does not allow for such form of defence, the provision under which the appellant was convicted is invalid, being

repugnant to Article 38(1) of the Constitution, as, it is 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.

A Locus Standi Issue?

20. I pause here to point out that the nature of the evidence actually adduced, both in this judicial review, and in the District Court,

might arguably have given rise to a determination by this Court (or the High Court) that this appellant actually did not have locus

standi to bring a constitutional challenge.

21. As outlined earlier, counsel for the appellant submits that a constitutional reading of the amended s.31(4) of the 1988 Act

requires that a court should impart, or “read in” to the provision, a mens rea defence of “due diligence”. Absent such interpretation,

counsel argues, the section is invalid, as it does not allow for a trial in “due course of law” (Article 38.1 Constitution of Ireland).

Whether the existence of an offence of absolute liability necessarily always raises a constitutional question does not arise for

consideration for reasons which will be clear later in this judgment. But, in fact, the defence case, as presented in the District Court,

only had the effect of showing that the appellant company had used “due diligence” to prevent under age persons from gaining

access or entry to the premises at a prohibited time and occasion. It did not address the actual subject matter of the first charge at

all.

22. In the District Court, the defence case hinged entirely on showing the company had used due diligence to prevent under age

persons from gaining access to the premises. There was no evidence with regard to the true issue in this appeal, that of the defence

to permitting the sale of intoxicating liquor by “another person”, that is, a member of the bar staff. In fact, the evidence in the

District Court entirely revolved around the proposition that the same defence evidence in respect of the s.34 charge (young person

over 15 and below 18 on a prohibited time and occasion) should have been applied and that a ‘due diligence’ test “read into” the

defence to the s.31(1)(d) charge, as provided by s.31(4)(d), as amended, thereby entitling the appellant to have that charge

dismissed also. But, in the absence of any evidence in relation to a barman having actually asked for an age card, or even having

exercised any due diligence in finding out the young woman’s age, the appellant was found guilty of the offence under s.31(1)(d).

23. On the authority of the judgment of this Court in CC v. Ireland [2006] 4 I.R. 1, a powerful case can be made, therefore, that,

absent the necessary testimony from such a barman, the appellant has no locus standi to raise a constitutional issue, and is

impermissibly seeking to assert a jus tertii. There was no evidence of “due diligence”, in any shape or form, by a barman who engaged

in sale, delivery or supply to AB. As a matter of law, it is not open to the appellant to advance a constitutional challenge based on jus

tertii. Notwithstanding this pertinent question arising, it is preferable, nonetheless, to decide the appeal on its merits, as the case has

an importance which goes beyond its own facts. The appellant is a member of the Vintners Federation of Ireland, and asserts concern

on behalf of the organisation that other prosecutions might be brought which preclude a defence of ‘due diligence’, or ‘reasonable

steps’ being taken by vintner-licensees.

The High Court Judgment

24. In a carefully reasoned High Court judgment, Herbert J. observed that, in the year 2000, the Oireachtas had legislated so as to

reformulate, strengthen or restructure the due diligence test in the case of a defence to an offence under s.31(1)(d) of the Act of

1988. The effect of this amendment was, he held, was to provide for one particular method of demonstrating due diligence.

25. In a case such as the more serious offence of permitting sale or delivery, this could be shown by demonstrating that the young

person had, in fact, been asked for, and produced, an ID card prior to the sale or supply of intoxicating liquor. Thus, Herbert J.

reasoned, if the appellant had been able to adduce evidence: (a) that AB had been asked for an age card (as defined by s.40 of the

Act of 1988, as amended), and (b) that she had actually produced such an identification card to the barman; then the defence, even

as delimited, would have been available to the appellant.

26. In dismissing the application for judicial review on its merits, however, Herbert J. held that the correct application of s.31(1)(d)

precluded any defence except that which was provided for in s.31(4) of the Act of 1988, as amended. He concluded that s.14(1)(b)

of the Intoxicating Liquor Act, 2000 had substituted a new subsection for the original s.31(4) of the Act of 1988; and that the

legislature had in the “clearest, most emphatic and unequivocal language” expressly removed any alternative possible line of defence

such as “other reasonable grounds for believing that such a person was over the age of 18 years”, and defining the production of an

age card defence as the sole available ground for defence.

27. The judge held that the “plain, literal and grammatical meaning of the words employed” meant “that there should be only the

single indicated defence”. He pointed out the serious nature of permitting persons under the age of 18 years to be sold intoxicating

liquor. He contrasted such an offence with, for example, lesser offences committed under s.34(1) of the Act of 1988, in allowing a

child to be in the bar of licensed premises, or under s.35 of the Act of 1988, in allowing under aged persons to be on licensed

premises during extended hours. In such cases, the broader form of defence was available.

28. A number of other observations of the High Court judge are pertinent. 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.

29. At one passage in the judgment, however, the learned judge appears to have expressed views which, in isolation, might be taken

as meaning that the Oireachtas had entirely eliminated a defence which was provable on the balance of probabilities, based on a

belief, which if genuine, did not have to be shown to be objectively reasonable, or the mere absence of negligence. I do not consider

that this is the true import of the High Court decision. A defence, based on the balance of probabilities, is not precluded by the words

of the sub-section. The precise form of the defence available is next considered.

The Appellant’s Case

30. As a corollary of its case, as described earlier, the appellant also submits that, in the absence of a due diligence defence, as

originally defined in the Act of 1988, the new amendment of 2000 created an offence of absolute liability, which, it claims, is

constitutionally invalid, by analogy with the decision of this Court in CC v. Ireland [2006] 4 I.R. 1.

31. The High Court judge rejected the appellant’s submission. He held that s.31 (4) was consistent 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. He observed that

he was unable to find any authority which suggested it was not competent for the legislature, for a proper purpose, and to a

reasonable and proportionate degree, to limit the type of reasonable care upon which an accused might rely to exculpate himself. The

defence was, he held, both certain and straightforward. It made the decision as to whether or not to sell, deliver, supply or permit

the consumption of intoxicating liquor a simple one; one more open and less likely to cause individual offence to customers.

The Offence is one of Strict Liability

32. It was common case in this appeal that the charge upon which there was a conviction was one of strict liability, and came within

the category of offences which deal with social and public welfare matters, where the law may often provide for a due diligence

defence. In fact, the provision does not come within the absolute liability category at all. A defence is provided for.

33. The questions then are, 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?

34. As to true criminal offences, the presumption of mens rea is long established. It has been observed that “…there has for

centuries been a presumption that Parliament does not intend to make criminals of persons who are not blameworthy in what they

did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of

Parliament, we must read in words appropriate to acquire mens rea.” (per Reid L.J. Sweet v. Parsley[1970] A.C. 132 at 148, adopted

by Henchy J. in People v. Murray [1977] I.R. 360 at p. 399, and again approved by this Court in CC v. Ireland [2006] 4 I.R. 1 at p.

19).

35. It is true that no such words are to be found in the provision herein defining this offence, or the defence of it. Should a court

then “read in” words appropriate to require mens rea? In fact, the true question is, again, a narrower one, in that the issue relates to

whether there can ever be evidence sufficient to negative the charge?

Taxonomy

36. As regards what is called the “taxonomy”, or characterisation of offences, it is helpful to start with the well-known dissenting

judgment of Keane J. in Shannon Regional Fisheries Board v. Cavan County Council [1996] 3 I.R. 267. That case stated concerned the

issue of whether or not the defendant county council could avail of a “mens rea” defence on a water pollution charge. This court was

composed of O’Flaherty J., Blayney J. and Keane J. The majority (O’Flaherty J. and Blayney J.) held, in dismissing the appeal, that the

question raised in the case stated as to whether mens rea was a necessary ingredient in the offence, was not relevant to the issue,

as mens rea had clearly been established; that there was no doubt the defendant county council had deliberately discharged

imperfectly treated sewage into waters; and the fact that it had no alternative did not alter what it had done in point of law.

37. However, Keane J. dissenting, engaged in a detailed survey of the jurisprudence on the issue, ultimately coming to consider (at p.

286 – 289 and p. 292) the decision of the Supreme Court of Canada in R v. City of Sault St. Marie [1978] 85 DLR (3D), where Dickson

J. considered the question, whether there was some intermediate stage between the accepted principle of “ordinary” criminal

responsibility (requiring mens rea), and the doctrine of absolute liability. This question was one which, in Keane J.’s words, had

“caused understandable disquiet and both textbook writers and courts have on occasions sought to find an intermediate position

between the stark alternatives of a requirement that mens rea be proved by the prosecution and that the offence be treated as

one of strict liability to which the absence of mens rea is no defence” (at page 282).

38. Keane J. then turned to consider in more detail the judgment of Dickson J. in R v. City of Sault St. Marie, where that judge

concluded that instead of two categories, there were three as follows:

“…, for the reasons which I have sought to express, … compelling grounds for the recognition of three categories of

offences rather than the traditional two.

(1) Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or

recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or

by additional evidence.

(2) Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of

the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that

he took all reasonable care. This involves consideration of what a reasonable man would have done in the

circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts, which,

if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event.

These offences may properly be called offences of strict liability. …

(3) Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was

free of fault.” (Emphasis added) (see pages 287-288 of [1996] 3 I.R.)

39. Dickson J. concluded that public welfare offences would, prima facie, come within the second category, and were not subject to

the presumption of full mens rea. (See p. 288) An offence of that type, he held, fell within the first category (requiring full mens rea)

only if words such as “wilfully”, “with intent”, “knowingly”, or “intentionally”, were contained in the statutory provisions creating the

offence. Offences of absolute liability, by contrast, would be those in respect of which the legislature had made clear that guilt would

follow proof, merely, of the prescribed act.

40. On this, Keane J. commented:

“Although the authorities speak of the legislature as having created offences of "strict liability" or "absolute liability", it is

important to bear in mind that the division of criminal offences into these categories has, in general, been the

consequence of judicial decisions. In these circumstances, it seems to me that there is not much force in an argument

which might otherwise have some appeal, i.e. that if the law is to develop in this area, it should be by parliamentary

intervention rather than by court decisions. Since the doctrine of "strict liability" has been developed by the courts,

there seems no reason why its further elaboration should not also be undertaken by judges rather than by the

legislature. That was the view taken by Dickson J. and is one with which I would respectfully agree.” (p.289)

41. But, in dealing with offences of strict liability, but containing a “reasonable care” defence, Keane J. warned at p. 289 that an

observation of Lord Reid in the House of Lords in R. v. Warner [1969] 2 A.C. 256 ( at p. 271) , that “Parliament being sovereign, can

create absolute offences if so minded”, is to be treated with caution in our jurisprudence, having regard to the guarantee in Article

38, Section 1 of the Constitution, that “no person shall be tried on any criminal charge save in due course of law”. He pointed out

(at p.290 of the Report), it was necessary that the courts should consider with care, in every case where it was claimed that an

offence had been created, and whether the language used by the Oireachtas would justify a construction leading to a finding of

absolute liability; whether it arose by necessary implication because of both the subject matter of the enactment and the nature of

the penalty imposed. This process of scrutiny should be carried out, he warned, having regard to the presumption of constitutionality

which arose in the case of post-1937 statutes.

42. Here the subject matter in question is the regulation of the sale of alcohol to young persons. It is accepted that the question of

this being an offence of absolute liability does not arise in this appeal.

43. A further observation of Dickson J. in the Canadian authority cited earlier is of immediate assistance in dealing with this subject

matter. Speaking of regulatory offences, such as “violations of liquor laws”, he said {[1978] 2 SCR 1299 at 1302-03}:

“Although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in

substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of

criminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure

food, violations of liquor laws, and the like. …” (Emphasis added)

The Court is here asked to address what is accepted to be a strict liability, therefore, an offence in what Keane J. described as being

in the “public welfare” category.

44. In CC v. Ireland [2006] 4 I.R. 1 this Court had to consider a provision which criminalised and exposed a person, without a mental

guilt test, to a maximum sentence of life imprisonment. This Court held that such a situation failed to respect the liberty and dignity

of the individual, and constituted a failure by the State to vindicate the rights of a citizen to liberty and good name, which rights

were so rooted in the traditions of the people as to be ranked as fundamental. This Court held that the right of an accused not to be

convicted of a true criminal offence, in the absence of mens rea, was not qualified or limited by the impugned section (s.1 (1) of the

Criminal Law (Amendment) Act, 1935), but was, rather, wholly abrogated, and that the imposition of this injustice on a discrete class

of persons could not be justified solely on the basis of its effectiveness as a deterrent.

45. The essence of the appellant’s submission is that Dickson J.’s taxonomy of offences does not admit of what is said to be a “fourth

category” of offence, that is, a strict liability offence, where the scope of the due diligence defence is limited by statute. The

appellant submits that the defence created by s.31(4) does not constitute a true defence to the charge, but rather does no more

than restate the actus reus of the charge itself.

46. It can be readily acknowledged that what is in question here is 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.

47. There is no doubt, either, that, in enacting, in the manner it did in the year 2000, the Oireachtas did reduce the range of the

defence. But, it did not reduce that factual range to nothing. The duty of the Court is to seek to interpret the sub-section as to

avoid constitutional repugnancy – if such issue actually arises in this offence. The provisions enjoy the presumption of

constitutionality. A constitutional interpretation is to be presumed as the one intended by the Oireachtas. The Oireachtas also

intended that proceedings permitted, or provided for, under the statute, are to be conducted in accordance with constitutional

justice, where the Oireachtas has sought to reconcile rights and duties with the common good (Croke v. Smith [1998] 1 I.R. 101, Re

Article 26 and Planning & Development Bill 1999 [2001] ILRM 81). Constitutional questions may arise regarding provisions which allow

for no defence whatsoever. (See the observations of Clarke J. in the context of defences to the intoxilyzer breath test (Denham C.J.

and Murray J. concurring) in DPP v. Cagney [2013] I.E.S.C. 13, [2013] 1 I.R. 493).

48. But, in fact, this is not a case where mere proof of the acts is, ipso facto, demonstrative of commission of the offence. What is in

question in the offence is not one simple act, but, first, the acts either of selling or delivering, or both, and second, an omission, that

is, the failure to require an age card prior to such acts.

49. 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. What is in question here, applies to all post-1937 statutes, that is a presumption of

constitutionality, and presumption of constitutional application. This means that a court should, where necessary, seek to impart such

considerations to those provisions engaged here.

50. I am not persuaded that in this context, in an offence of this type, a court is faced with a situation where it must “read in” a

broader mens rea provision so as to render the provision constitutionally valid. The point is, rather, whether, as it stands, the section

and sub-section can withstand scrutiny in a manner consonant with Article 38.1 of the Constitution?

51. It is a fact that the application and interpretation of the word “due”, as in “due diligence” or “due regard”, is frequently a matter

for judicial interpretation on the facts of a case. The courts will, therefore, properly and carefully scrutinise any legislative terminology

which might potentially impinge on the judicial function or judicial independence generally. A court will legitimately enquire whether the

formulation of a statutory provision, especially on a serious criminal charge does, in fact, deprive an accused of the right to a trial in

due course of law. The process of scrutiny will involve a clear identification of the nature of the offence.

52. For present purposes, the term “due course of law” includes the principle that no person should be exposed to a trial without the

right to defend himself or herself, and must know the nature of a defence available. The law must be “clear”, constitutionally

speaking, on the nature of the offence and any possible defence. The appellant relies on the well-known statements to this effect in

King v. Attorney General [1981] I.R. 233 in this regard, and contends that the law here is unclear. I disagree. To the contrary, the

law is, to my mind, rendered more certain and more clear. The Act of 1988, and its amendments, deal with not one, but a number of

offences of strict liability. The issue is more nuanced than is portrayed by the appellant. An objective appraisal of this defence

provision demonstrates that what is in question here is defined in a structured and proportionate way to address a specific “mischief”.

The position here is not that there is no defence, but that the evidential proofs for that defence are circumscribed and defined.

53. I am not persuaded, as counsel for the appellant submits, that the defence is “meaningless”. The defence now provided is not

nugatory, but undoubtedly more limited. It does necessitate that an accused is automatically found guilty, but rather, identifies when

the action of sale of intoxicants is lawful within a range of activity which is regulated for the common good. One might envisage that,

potentially, a good defence might arise where, depending on the facts (a) an age card was issued in error; (b) if such age card was

obtained by deception; or (c) was a forged card. 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.

54. The question is, therefore, whether the amendment achieves its objective in a proportionate way, without denying the right to a

constitutional trial? Put another way, one can ask, is it unconstitutional for the Oireachtas to legislate so that the test of whether

there has been due diligence is referable to whether bar staff required a valid identification card? No authority has been cited to

support the proposition that this amendment of the defence provision, in an offence of this category, is an impermissible invasion of

the judicial domain. Significantly, no alternative legislative means of achieving the end in question is proposed. One can envisage

circumstances in which such delimitation in a different, more serious, category of offence might not withstand constitutional scrutiny,

but this is not such a case.

55. I would hold, consequently, that this offence is one of strict liability, which frees the prosecution from having to prove the totality

of mens rea, but nonetheless affords an accused an opportunity to prove, on establishing the necessary evidential ingredients, that

due diligence had been exercised in the context of the regulated activity in question. 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.

56. The situation here is quite distinct, therefore, from that considered by this Court in Employers Equality Bill 1996 [1997] 2 I.R 321.

There this Court had to consider an offence which imputed guilt to an employer, when committed by an employee, “whether or not it

was done with the employer’s knowledge or approval”. The offence carried with it a fine of £15,000, or a prison sentence of up to 2

years. That was in a situation where the offence was far from regulatory in nature, and where a conviction, as this Court held, would

have attracted a high degree of social opprobrium. It was, therefore, an offence of absolute liability in an offence of high social

opprobrium, where the conduct or state of knowledge of an accused employer was entirely set to one side in the analysis. That is not

the position here, although the defence sets a higher threshold than previously pertained.

“Allow” or “Permit”

57. I return to an earlier point as to the legislative words used. In other instances in this legislation, the Oireachtas used the term

“allow” in the form of definition of an offence. However, in the case of offences under s.31 (1) of the Act of 1988, the relevant term

deployed in both defining the offence and the defence, is “permit” or “permitting”. We have been referred to a number of cases in

the jurisprudence which address the meaning to be attached to the term “permits” to be found in s.31(4).

58. It is true that, in Attorney General v. Carroll [1932] I.R. 1, at p. 10 Hanna J. held that a publican “permits” consumption of

intoxicating liquor on his premises if he does not take reasonable steps to prevent it. (See also AG v. Egan [1943] I.R. 357; Duncan v.

Gleeson [1969] I.R. 116 at p. 120 to 121).

59. In Duncan v. Gleeson, Pringle J. in the High Court pointed out that where the word “permit” is used in defining an offence of this

type, it would be open to a publican to make the defence that he had taken all reasonable steps to clear the premises, and that

there had been no intention to create an offence of absolute liability by the statute (see [1969] I.R. 116).

60. But here, as the High Court judge pointed out, an interpretation of the word “permits”, drawn from its legislative history, must

yield to the interpretative technique mandated by the presumption of constitutionality of this post-1937 statute. Insofar as the

enactment is capable of double construction (and insofar as such construction is necessary at all), the constitutional construction

must be preferred. It would be entirely straining the interpretation of the section, as it now stands, to read in a construction of the

word “permit” which would run counter to the clear words of the statute. Equally, it would be wrong to unnecessarily impart a

meaning which would render the section constitutionally questionable.

61. The Act of 1988 enjoys the presumption of constitutionality. The onus was on the appellant to establish otherwise. That

presumption has not been displaced. It is not unconstitutional for the legislature, in the case of this offence in this category, to

proportionately delimit the defence of reasonable care or due diligence to a certain specified minimum standard. It is not possible to

conceive of lesser means or measures whereby this desirable end, engaging common good considerations, could otherwise be

achieved. 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.

62. The age card to be produced is as defined in s.30 of the Act of 1988, meaning a card issued under section 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. This case does not concern a person under the age of 18 years who proffered a card which was valid on its

face.

63. These conclusions do not, however, entirely determine the outcome.

The Temporary Closure Order

64. I address now one further factor in determining the nature of the offence, as being a minor and regulatory matter. The temporary

closure order is quite distinct from the penalty. Section 36A(2) of the Intoxicating Liquor Act 1988, as amended, and inserted by s.13

of the Intoxicating Liquor Act 2000, provides for the making of a mandatory temporary closure of premises order where a person is

convicted of an offence under s.31(1) or (2), s.35(1), or s.36 of the Intoxicating Liquor Act 1988, as amended. Section 36A(2)(a) and

(b) provide that the temporary closure order shall be for a period not exceeding 7 days in respect of a first such offence, or of not

less than 7 days, and not more than 30 days, in respect of a second or any subsequent offence. Does this provision alter the

conclusions reached above? The appellant says, the penalty involves far more than a fine, and that this further consequence,

including an alleged deprivation of property rights in the form of income and turnover, alters the nature of the offence itself into the

more “serious” category.

65. One might observe here that the conviction was not a first offence, as garda evidence in the District Court subsequent to

conviction made clear. But, more generally, the nature of the ancillary order can vary in accordance with whether it is a first offence,

and the Act, as amended, allows for a graded proportionate response, in accordance with the seriousness of the offence.

66. Pursuant to the order of the respondent, made on the 4th September, 2007, a temporary closure of premises order of 11 days

was made in respect of the conviction of the applicant under s.31(1) of the Intoxicating Liquor Act 1988, as amended. The order was

above the minimum, but substantially below the maximum duration provided for, of 30 days. The order was to come into effect on the

thirtieth day after the conviction, unless otherwise directed by the High Court. There is no doubt that such an order has a financial

effect on the defendant.

67. Evidence from Mr. Rea Kennedy, in the District Court, was to the effect that such a temporary closure order would lead to a loss

of profits of in or about €14,040, and additional wage costs of €2,980, on the basis that the appellant would be obliged to pay wages

during the period of the closure. The appellant relies on the nature of the orders made, seeking to make out the case that such a

consequence renders conviction of the offence itself significantly more than of a minor nature, involving serious additional penalties as

well as fines.

68. No argument was advanced as to whether or not the temporary closure order constitutes a “primary” or “secondary” penalty,

such as arose in Conroy v. Attorney General [1965] I.R. The case put forward was different. Instead, a case was made based on the

judgment of this Court in Montemuino v. The Minister for Communications, Marine and Natural Resources [2013] 4 I.R. 120.

69. In Montemuino, the applicant was charged with failing to record the true quantity of a particular catch of fish, caught and

retained in his ship. This offence was said to be in breach of the Sea Fisheries (Control of Catches) Regulations, 2003 contrary to

s.224B(3) of the Act of 1959. In the High Court, the applicant sought to challenge the constitutionality of the provision by way of

judicial review, arguing that the mandatory and non-discretionary forfeiture of all fish, and all fishing gear, that might be found on a

boat was disproportionate, and, therefore, unconstitutional. The High Court upheld the constitutionality of the impugned provision

[2008] IEHC 157.

70. On appeal, this Court dismissed the appeal, but on a different basis. Section 224B(3) of the Fisheries (Consolidation) Act 1959, as

inserted by s.5 of the Fisheries (Amendment) Act, 1983, provided:

“A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence

and shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the

conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:

(a) any fish,

(b) any fishing gear.”. (Emphasis added)

71. In dismissing this appeal, this Court held that the use of the words “a statutory consequence” together with the words “all or

any” in s.224B(3), created an ambiguity such that it was not clear that the section intended the mandatory forfeiture of all fish and

all fishing gear. Given the penal status of all of the section, interpreted on the ordinary principles of construction, it was to be

interpreted in a way that required that there be a discretion as to what fish and what gear were to be forfeited? Two members of this

Court, Hardiman J. and Fennelly J. held that the question of doubtful penalisation did not arise, because the section, properly

construed, was unambiguous. The phrase “all or any” clearly created a discretion, and it was unnecessary to examine any other

phrases in the sub-section. But, the same two members of the Court also held that the use of the phrase “all of any” did not permit a

discretion to order no forfeiture at all on conviction and, to that extent, the discretion created could not be expressed as being a

discretion as to what fish (if any), and what gear (if any), were to be forfeited. The majority of the Court (Denham C.J., Hardiman,

Fennelly, Clarke and MacMenamin J.) held that the only person who could properly exercise a discretion as to forfeiture was a

sentencing judge (Deaton v. The Attorney General and the Revenue Commissioners [1963] 1 I.R. 170). The Court held, therefore,

that it was unnecessary to apply the double construction test for the interpretation arrived at as a result of the application of

ordinary principles of construction, it did not give rise to any constitutional difficulty. Additionally, the Court held that it was

necessary for a sentencing judge to have regard to the importance of ensuring compliance with E.U. legislation, and in selecting the

appropriate penalty, it was to be assumed that any sentencing judge would take such factors into account, subject to the

requirement of both Irish and European Union law, that some such penalties imposed were also proportionate.

72. But, there are a number of distinguishing features between the instant case and Montemuino. Firstly, the issue here arises in a

summary trial on a public welfare offence in the District Court. Second, as can be seen, the wording of the statute is entirely different

from that which arose in Montemuino. Section 36A(2) of the 1988 Act, as amended, provides that:

“The [District] Court shall, in addition to any penalty imposed, make an order (in this section referred to as a

“temporary closure order”).” (Emphasis added)

The distinction between the penalty and the ancillary order is entirely clear.

73. Section 36A(2) draws a clear distinction between the penalty and the ancillary order. The nature of any ancillary order can vary

in accordance with circumstance. A significant degree of discretion is vested in the trial judge, dependent on the severity or

frequency of the offence. Here, the order was approximately 1/3rd of the way up the scale, where the maximum closure period could

be 30 days. In Montemuino, this Court was dealing with a situation which provided that a person guilty (even for the first time) of a

relevant offence, was exposed “as a statutory consequence of the conviction” to a forfeiture of “any fish” and “any fishing gear”.

There was no ambiguity in the penal section engaged. There was no discretion vested in a trial judge. Thus, what was undoubtedly in

question, was a penalty.

74. The position is quite distinct here. The wording of the statute, also entitled to a presumption of constitutionality, and

constitutional application, is made clear by the usage of the words “in addition to”. The penalty demonstrates the charge relates to a

minor and regulatory matter. The phraseology of the provision distinguishes 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. The nature

and effect of the provision does not alter the nature of the conclusions reached earlier, therefore.

75. I would, therefore, affirm the order of the High Court, and dismiss this appeal.