The High Court has refused Waxy O’Connors Limited’s application for judicial review of its conviction for an offence involving the sale of alcohol to a person under 18.
Mr Justice Herbert delivered judgment on 25 November 2009. The company had sought certiorari or, if necessary, a declaration that section 31 of the Intoxicating Liquor Act 1988, as amended, was invalid. The court refused the relief sought.
The case arose from an incident at the company’s licensed premises in central Cork on 22 April 2006. A young woman who was not yet 18 used another person’s identity and presented that person’s passport and driving licence to a doorman. The judgment records a dispute over whether she also produced an age card; the doorman’s evidence was that he saw one but rejected it because its photograph was blurred. He admitted her on the basis of the passport and driving licence. She was sold beer, which she drank on the premises.
The company faced charges under sections 31(1) and 34(1) of the 1988 Act. On 4 September 2007, the District Court dismissed the section 34 charge, for allowing an underage person to be in the bar, but convicted the company under section 31(1). The judicial review concerned the legal defence available to the section 31 charge, rather than a new determination of the incident’s facts.
The company argued that the age-card defence in section 31(4) was additional to a general defence of reasonable care or due diligence. It also argued that limiting the defence to production of an age card made the offence one of absolute liability and breached constitutional protections. The State parties submitted that a 2000 amendment deliberately made production of an age card the sole defence.
Justice Herbert agreed with the State parties’ interpretation. He held that the age-card requirement was a defence, not an element the prosecution had to disprove. Once the prosecution proved the offence’s necessary facts beyond reasonable doubt, the accused had to establish the statutory defence on the balance of probabilities. He concluded that the legislature could limit the form of reasonable care available as a defence, provided the limit was fair and proportionate. In his view, the age-card defence met that standard and the law did not infringe the rights relied on by the company.
The ruling resolved the legal challenge before the High Court. It did not reverse the District Court conviction; the judgment records that the requested judicial review relief was refused.