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GAZETTE
SEPTEMBER 1987
How do you Know?
The Problem wi th 'knowingly' in the Licensing Laws
Mo s t l awye rs wi ll be awa r e of t he p r ob l ems of proof c r ea t ed
by t he pr esence in t he re l evant sec t i on or cha r ge of t he wo r d
' know i ng l y '. In this connec t i on t he e n f o r c eme nt of Sec t i on
1 0 of t he I n t ox i ca t i ng Liquor Ac t 1 9 2 4 —
Licensee
supplying
dr i nk to person under 1 8 — instant ly springs t o mi nd. First
w e must ask ourselves a purely g r amma t i cal question — does
t he wo r d ' know i ng l y' in t hat sec t i on refer me r e ly t o t he
' supp l y i ng ', t he age of t he pe r son t o w h om t he dr i nk w a s
supp l i ed, or t o both?
Generally speaking it has always
been assumed that the word
'knowingly' in this context referred
to knowledge of the age of the
customer rather than to knowledge
of 'supplying' apparently on the
grounds
t hat
one
cannot
'unknowingly' supply. What if the
licence holder (the only person
guilty of an offence under Section
10) is absent from the premises at
the relevant time? No doubt the
court, as it does in prosecutions
under Section 2 of the Intoxicating
Liquor Act 1927, for breaches of
the closing regulations, would still
hold the licensee liable for the acts
of the servant but with knowledge
of the age of the customer on the
part of the publican remaining a
matter of conjecture as to proof.
Curiously Section 2 of the 1927
Ac t — breaches of closing
regulations — does not refer to a
licence holder but merely enacts
that
'any person'
who sells etc.
shall be guilty of an offence. The
word 'knowingly' is not used. It
might be remarked here that the
standard form of summons used
for Section 2 prosecutions contains
the words 'you being licensed' etc.
It is arguable that this phrase
should not be included in the
charge. Of course an endorsement
pursuant to Section 25 would only
follow on conviction of the licence
holder and not in the case of
conviction of a barman alone.
Since the principle of 'strict
liability' has obviously been applied
t o an ex t ent in Sec t i on 2
prosecutions since the passing of
the 1927 Ac t, a prosecution
against an assistant alone will be
a rare occurrence. Endorsement
would of course not follow in such
a case. A charge of 'supplying',
except perhaps as an abettor,
would not lie against an employee
for a breach of Section 10 of
the 1924 Act in view of the
phraseology of that Section.
by
DAV I D LEAHY
C.P.A., Dip.Law,
Asst. Commissioner,
Chairman of Editorial Board
of Garda Siochana Guide.
Section 16 of the Licensing Act
1872 provides that:
If any licensed person —
(1)
knowingly
harbours or
knowingly
suffers to remain on
his premises any (Garda) during
any part of the time appointed
for such (Garda) being on duty
unless . . . ,
or
(2) supplies any liquor etc. to
any (Garda) on duty,
he is guilty of an offence.
It will be noted that the word
'knowingly' is excluded from (2)
although it is included in (1). The
reason is, one supposes, that in (1)
the publican or his staff might be
unaware of the Garda's presence
on the premises, or does the
'knowingly' govern the 'on duty'
portion or both? The position is not
clear. In
Sherras -v- De Rutzen
[1895] 1 Q.B. 918 the publican
was charged with selling drink to
a policeman on duty as at (2)
above. The policeman was in
uniform but he had removed his
armband which was required to be
worn at all times while on duty.
The case for the defence was that
the defendant could not have
known that the policeman was on
duty. However although the charge
as laid was proved, the Appeal
Court reversed the conviction on
the ground that the publican had no
way of knowing that the policeman
was on duty in the absence of his
admission; in other words the
necessary
Mens Rea
was absent.
It might be remarked here that in
cases under Section 13 of the
Licensing Act 1872 it was held
that knowledge or belief of the
publican of the condition of the
person alleged to be drunk is not
necessary to constitute the offence
of selling drink to a drunken person,
although it is necessary in the case
of a charge for pe rmi t t i ng
drunkenness. The word 'knowingly
does not occur in either charge.
There is no doubt but that the
legislature has used the word
'knowingly' in some instances to
ensure that guilty knowledge was
a prerequisite of conviction. It
would seem to be used or not used
in many other cases without much
reflection on its ramifications.
Recent decisions in England show
a tendency to regard cases such as
pollution, drugs, etc. which are of
great public concern as coming
under the heading of ' s t r i ct
liability', where convictions follow
on proof of the charge irrespective
of» the state of the defendant's
mind. If supplying drink to a young
person can be regarded as one of
these serious offences of strict
liability, then it would seem that it
may not be necessary to prove that
the publican knew t hat the
customer was under age at time of
sale, if the word 'knowingly' was
removed from Section 10 of the
1924 Act.
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