Cork pub loses challenge to conviction

A Cork city pub convicted of allowing drink to be sold to an underage girl who produced an age card with a “fuzzy photo” and another person’s passport and driving licence in her effort to gain entry has lost a High Court challenge to its conviction.

The pub had argued it should be allowed plead a defence of exercising reasonable care in seeking to ascertain the girl's age before allowing her onto the premises.

It claimed the sole defence available to it under the relevant law — production of a Garda-approved age card — was unconstitutional in that it was unreasonably and disproportionately restrictive.

Yesterday, Mr Justice Daniel Herbert rejected those claims and ruled production of a Garda-approved age card, and not any other grounds for believing a person was of drinking age, was the only defence the pub could make to the charge.

In dismissing the proceedings by Waxy O'Connors Ltd, Marlboro Street, Cork, the judge said he took notice of the "very great social evil" of underage drinking and the "pressing necessity" for those who enjoy the legal privilege of selling alcohol "to be particularly vigilant to prevent this problem."

The pub had claimed the then 17-year-old girl had produced an age card with a fuzzy photo to try to gain entrance on April 26th, 2006. While the doorman refused to let her in on the basis of that card, he had allowed her in when she produced a passport and driver's licence.

A Garda who came to the pub had challenged the girl and after about 10 minutes she owned up to not being the person on the identity documents. The pub was later convicted in the District Court of allowing drink to be sold to her.

It brought judicial review proceedings over the conviction to the High Court claiming its Constitutional rights had been infringed in that the sole defence available to it of an age card, as provided for under the Intoxicating Liquor Acts 1988-2003, was unreasonably and disproportionately restrictive.

The DPP had argued there was a strict liability to produce an age card, the legislature having in 1988 removed the defence of "reasonable grounds for believing" a person was of age. The Intoxicating Liquor Act 2003 provided anyone between 18 and 21 had to produce an age document, including the official Garda approved card, a passport, driver's licence or EU identity card, the DPP also argued.

Mr Justice Herbert said numerous cases have established the principle that the intention of the legislature in drafting laws is established by considering the "plain, literal and grammatical meaning of the words employed".

He accepted the DPP's contention the plain meaning of the changes to the intoxicating liquor legislation was that the sole defence to a prosecution was the production of an age card. The age card requirement eliminated the defence of having to prove something on the basis of a belief, or on the balance of probabilities, and meant there was a more rapid and consistent administration of justice by the courts, the judge added.