A retractable canvas awning over a smoking area at Grace’s Public House in Naas counted as a roof under Ireland’s smoking ban, the High Court ruled in May 2010. The decision answered legal questions referred by a District Court judge; it did not decide whether the company was guilty of the charge.
The Health Service Executive (HSE) had charged Brookshore Limited, which ran the pub, over alleged smoking in a specified place on or about 23 April 2008. The charge related to an enclosed laneway between two parts of the premises, covered by a retractable canvas awning and furnished with bar stools, counters and ashtrays.
The District Court heard the matter in September 2009. Judge John Coughlan inspected the area and saw photographs from both sides. He concluded that the canvas covering was not a fixed or movable roof and that the area was outdoors and exempt from the smoking prohibition. He indicated that he intended to dismiss the prosecution, declined to hear oral evidence and awarded costs against the HSE. He then referred four legal questions to the High Court by way of case stated.
Justice Peter Charleton held that a covering’s material was irrelevant to whether it was a roof. The statutory exception applied to a place wholly uncovered by any fixed or movable roof. The awning, he found, was designed to provide shelter and impede the dispersal of smoke, and the area was covered by a movable roof at the relevant time. The exception therefore did not apply.
The High Court said the meaning of “roof” in the statute was a question of law and that it was not bound by the District Court judge’s legal conclusion. It answered that the law allowed the District Court to proceed to conviction, but left any further findings on whether the prosecution had proved the charge beyond reasonable doubt to that judge.
The court also ruled that the District Court judge was wrong to award costs against the HSE. It noted that the prosecution had been brought in the public interest and said the costs award was too high. The High Court did not itself convict Brookshore Limited or determine the final outcome of the prosecution.