A pub found guilty of allowing drink to be supplied to an under age girl has lost a Supreme Court challenge over its conviction.
The five judge court rejected claims that laws allowing a limited defence to that charge were unconstitutional.
The case centred on claims by the pub the charge should have been dismissed because it had exercised “due diligence” in assessing whether the girl was old enough to be served alcohol.
Waxy O’Connors Ltd, trading as Waxy’s Bar, Marlboro Street, Cork, was convicted in the District Court of allowing the 17-year-old be supplied with beer in April 2006 contrary to the Intoxicating Liquor Acts 1988 and 2000. A second charge of permitting her to be in the bar was dismissed.
Waxy’s claimed she produced an age card with a fuzzy photo to try to gain entry and was refused by a doorman. However, he allowed her in after she produced a passport and driver’s licence, both of which, it turned out, did not belong to her.
A garda who came to the pub challenged the girl who, after about 10 minutes, admitted she was not the person in the identity documents.
After it was convicted, the pub was ordered to close for 11 days which, Waxy’s said, would cost it about €14,000 in profits and additional wage costs of €2,980.
Waxy’s took judicial review proceedings but the High Court dismissed the challenge after finding 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.
Erred in law
In its Supreme Court appeal, Waxy’s argued the District Judge erred in law because he should have construed the supplying of drink charge so as to allow for the defence of “due diligence” - as applied in relation to the dismissed charge of allowing her be on the premises. The DPP opposed the appeal.
Giving the Supreme Court judgment, Mr Justice John MacMenamin affirmed the High Court decision.
He said the defence case, in the District Court, hinged entirlely on showing Waxy’s had used due diligence in preventing young people getting access to the pub.
However, there was no evidence in relation to the barman who served the drink, having actually asked for an age card “or even having exercised any due diligence” in finding out her age, he said.
Waxy’s, a member of the Vintner’s Federation of Ireland (VFI), had asserted its concerns on behalf of the the organisation other prosecutions might be brought which precluded the “due diligence” or “reasonable steps” defence, he said.
While Waxy’s did not have standing in law to assert third party rights, it was preferable the court should deal with this case on its merits because it had an importance beyond its own facts, he said.
Invalid
Waxy’s had argued the absence of a due dilgence defence, as contained in the 1988 Intoxicating Liquor Act, and amended by the Act of 2000, created an offence of strict liability which was constitutionally invalid.
Mr Justice MacMenamin said the 1988 Act enjoys a presumption of constitutionality, the onus was on the pub to establish otherwise and it had failed to do so.
It is not unconstitutional for the legislature, in an offence in this category, “to proportionately delimit the defence of reasonable care or due diligence to a specified minimum standard”, he ruled.
Under age drinking is a serious problem and the common good requires the law is structured and applied in a manner which achieves the desirable end of preventing an “undesirable practice” which may affect health and wellbeing of young people, he said.
The relevant law was a “proportionate” means of achieving that end, he held.