The Gazette 1987

GAZETTE

SEPTEMBER 1987

How do you Know? The Problem wi th 'knowingly' in the Licensing Laws

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.

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

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