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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Joyce [2003] IEHC 166 (20 May 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/166.html Cite as: [2003] IEHC 166, [2004] 1 ILRM 300

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THE HIGH COURT

[2002] 1910 SS

IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

AND IN THE MATTER OF THE LICENSING ACTS 1833 – 2000

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND PAT JOYCE AS NOMINEE OF JOYCE'S SUPERMARKET LIMITED

ACCUSED

JUDGMENT of Quirke J. delivered the 20^th day of May 2003.

This is a case stated by Judge Michael Connellan, a judge of the District Court for the opinion of this Court pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961.

The accused who is the holder of a spirit, beer and wine retailers'

off-licence for premises, (known as Joyce's Supermarket) at Headford in Co. Galway was charged with an offence alleged to have been committed on 16^th November, 2000, of permitting a person to sell intoxicating liquor to that person for consumption off his premises by a person under eighteen years contrary to the provisions of s. 31 (1), (2) and (3) of the Intoxicating Liquor Act, 1988.

The summons which brought the accused before the Court for trial was amended by Judge Connellan at the request of the prosecutor to reflect the appropriate charges preferred against the accused. It did not state on its face or otherwise that the accused was required to produce his licence to the Court at the trial.

Section 32 (1) of the Intoxicating Liquor Act 1927 ("the Act of 1927") provides that where the owner of the licence is charged with an offence to which Part III of the Act of 1927 applies the summons "shall state that such holder will be required to produce such licence to the Court at such trial.."

Section 14 (1) (a) of the Intoxicating Liquor Act, 2000 ("the Act of 2000") deleted the provision previously contained in s. 31 (3) of the Intoxicating Liquor Act, 1988 ("the Act of 1988") which provided inter alia that "… the offence shall be deemed for the purposes of Part III (which relates to the endorsement of licences) of the Act of 1927 to be an offence to which that Part of the Act applies".

Section 13 (11) of the Act of 2000 provides that "[N]othing in the Acts shall prohibit the Court from ordering that a conviction for an offence to which this section applies shall be recorded on the licence held by the person so convicted, and accordingly, where the Court so orders, the offence concerned shall be deemed for the purposes of Part III (endorsement of licences) of the Act of 1927 to be an offence to which that Part of that Act applies."

The question for determination by this Court is as follows:

1. Did s. 14 (1) of the Act of 2000 repeal s. 32 (1) of the Act of 1927 and

2. Is an offence under s. 31 (2) of the Act of 1988, an offence to which Part III of the Act of 1927 applies and

3. Does s. 32 (1) of the Act of 1927 apply in respect of a summons charging the accused with an offence under s. 31 (2) of the Act of 1988?

In summary the question which this Court is required to determine is whether the summons charging the holder of an intoxicating liquor licence with the commission of an offence contrary to the provisions of s. 31 (2) of the Act of 1988 should expressly state on its face that such licence holder is required to produce the licence to the Court at the trial of the offence because an ambiguity has arisen within the legislation which regulates the prosecution of certain offences identified within the Act of 1988 and in particular ss. 31, 35, and 36 thereof.

Pursuant to the Act of 1988 such offences were "…deemed for the purposes of Paragraph III (which relates to the endorsement of licences) of the Act of 1927 to be an offence to which that part of the Act applies."

The ambiguity has been caused by the enactment of s. 14 (1) (a) of the Act of 2000 which provides for the amendment of s. 31 of the Act of 1988 in the following terms:

"(a) In subs. (3) by the deletion of " and the offence shall be deemed for the purposes of Part III (which relates to the endorsement of licences) of the Act of 1927 to be an offence to which that Part of the Act apples",…".

The same Act provided (in s. 13 thereof) for the amendment of the Act of 1988 by the insertion of a new section (s. 36 A) which in turn provided (at subs. (II) thereof that:

"Nothing in the Acts shall prohibit the Court from ordering that a conviction for an offence to which this section applies shall be recorded on the licence held by the person so convicted, and accordingly where the Court so orders, the offence concerned shall be deemed for the purposes of Part III (endorsement of licenses) of the Act of 1927 to be an offence to which that Part of that Act applies".

The effect of these legislative changes in respect of offences contrary to the provisions of s. 31 (2) of the Act of 1988 has been to delete the mandatory requirement to endorse and to replace it with a mandatory penalty by way of a temporary "Closure Order" in respect of the premises where the offence occurred.

The Court however has retained a discretionary power to endorse in respect of convictions for offences contrary to the provisions of s. 31 of the Act of 1988 and where the Court exercises this discretion then the offence "shall be deemed for the purposes of Part III ( endorsement of licences) of the Act of 1927 to be an offence to which that Part of that Act applies." (See s. 13 of the Act of 2000).

The question which falls to be determined has arisen by virtue of the fact that Part III of the Act of 1927 includes the provision (at s. 32 (1)) that :

"Whenever the holder of a licence for the sale of intoxicating liquor by retail is charged with an offence to which this Part of this Act applies the summons or other document bringing such holder before a Court for trial on such charge shall state that such holder will be required to produce such licence to the Court at such trial, and at such trial the Court shall require such holder to produce such licence and deliver the same to the registrar, clerk or other principal officer of the Court."

The accused claims that the summons which brought him before the Court for trial on the charge pursuant to the provisions of s. 31 (2) of the Act of 1988 is fundamentally flawed because (he contends) the offence with which he has been charged is an offence to which Part III of the Act of 1927 applies and the summons upon which he was brought into Court for trial on that charge did not state that he was required to produce his licence to the Court at his trial and to deliver the same to the registrar, clerk or other principal officer of the Court.

I am satisfied that the contention advanced on behalf of the accused is unsustainable.

Section 14 (1) (a) expressly amends s. 31 of the Act of 1988 by deleting the provision which deems offences under the section to be offences to which Part III of the Acts of 1927 applies. Accordingly on the date when the summons requiring the accused to come to Court to answer the charge preferred against him was issued the offence with which he was charged had not been deemed an offence to which Part III of the Act of 1927 applied and there was accordingly no requirement for a statement of the type referred to in s. 32 (1) of the Act of 1927 to be contained within the body of or elsewhere upon the summons.

It is true that the Court retains a discretionary power to order that a conviction for an offence under s. 31 shall be recorded on the licence held by the accused but it is only upon the exercise of that discretionary power that the offence will be deemed to be an offence to which Part III of the Act of 1927 will apply. Accordingly the summons issued in this case was valid ab initio and was not flawed in the manner contended on behalf of the accused.

Insofar as the learned District Judge has posed three specific questions for determination by this Court I propose to address each of them briefly and separately.

1. I am satisfied that the enactment of s. 14 (1) of the Act of 2000 was intended for the purpose of amending s. 31 of the Act of 1988. Clearly its enactment had no effect upon the provisions of s. 32 (1) of the Act of 1927.

2. I am satisfied that an offence under s. 31 (2) of the Act of 1988 is no longer an offence to which Part III of the Act of 1927 applies. Section 14 (1) of the Act of 2000 expressly amended s. 31 of the Act of 1988 by deleting the applicability of Part III of the Act of 1927 to the offence. The Court however retains a residuary discretion to apply Part III of the Act of 1927 to the offence after conviction and during sentencing.

3. Section 32 (1) of the Act of 1927 does not apply in respect of the summons charging the accused with an offence under s. 31 (2) of the Act of 1988 for the reasons outlined above.

The Court therefore determines the questions of law raised in the following manner:

1. No.

2. No.

3. No.