DPP v James Francis Mcvitie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,MR JUSTICE GAGE |
| Judgment Date | 17 October 1994 |
| Judgment citation (vLex) | [1994] EWHC J1017-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 October 1994 |
| Docket Number | CO 552/94 |
[1994] EWHC J1017-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice McCowan and Mr Justice Gage
CO 552/94
MR T RYAN (Instructed by the Crown Prosecution Service, Mersey/Lancaster Area, Liverpool L3 1HN) appeared on behalf of the Appellant.
MR G MORRIS (Instructed by Weightman Rutherfords, Liverpool L3 9QW) appeared on behalf of the Respondent.
Monday, 17th October 1994.
I will ask Gage J to give the first judgment.
MR JUSTICE GAGEThis is an appeal by a prosecutor by way of Case Stated from a decision of the Liverpool Magistrates given on 7th December 1993. On that date the Magistrates dismissed an information against the Respondent which charged him with an offence, contrary to section 160(1)(a) of the Licensing Act 1964, of selling, by retail, intoxicating liquor without a justices' licence on 15th August 1993 at the Hard Dock Cafe, Regent Road, in Liverpool.
The facts can be set out shortly and are contained in the Case Stated. So far as they are relevant, they are these. Andrew Robert Hunter held a justices' licence authorising the sale of intoxicants at the Hard Dock Cafe which was revoked on 12th March 1993. He appealed against that revocation, but his appeal was dismissed on 12th August 1993 by the Liverpool Crown Court. Accordingly, on that date, and from thenceforth, there was no justices' licence to sell intoxicants at the Hard Dock Cafe. There was, however, a public entertainment licence granted by the Local Authority, which was in force at the time in the name of Andrew Robert Hunter. The owner or proprietor of the business at the time was James McVitie, the Respondent. At the time of the incident, he was intending to sell the premises.
At 12.45 am on 15th August 1993 three police officers entered the Hard Dock Cafe. People were paying to the receptionist at the entrance £5 to gain admission to the premises. Upon entering the premises, the police officers saw approximately 30 to 40 people there. People were dancing and consuming what appeared to be alcoholic drinks. The police officers saw no monetary transactions at the bar when and where people were obtaining alcoholic drinks. The officers saw that the bar staff were ringing up the amount of drinks on the till, and that the price of the drinks were rung up on to the till in order to provide a receipt for VAT purposes. The officers did not check the till. On that occasion there were two resident disc jockeys, a guest disc jockey and a music compere.
There was attached to the Case Stated an advertisement which appeared on 14th August 1993 in the Liverpool Echo. It read: "Hard Dock Cafe Party Night, Every Saturday, Usual Admission Price, Free Bar All Night". The admission price to the premises, the Justices found, had been £6 on the previous week, when the justices' licence authorising the sales of intoxicants was in force. They further found that the Respondents' intention was to give the intoxicating liquor away, so as to preserve the goodwill of the club pending a sale.
It was contended, on behalf of the prosecutor, that the transaction that took place, upon payment of the £5, amounted to a sale of liquor. The Respondent contended, before the Justices, that the free gift of liquor was bona fide and that there was no sale of liquor on that occasion.
The Magistrates were referred to various authorities. Their opinion is set out at paragraph 6 of Case Stated. They say this:
"We were of the opinion that:-
(a) As the admission price to the Hard Dock Cafe was lower than it had been the previous week, when a Justices' Licence authorising the sale of intoxicants had been in force, there was no evidence to suggest the price on this occasion was intended to cover anything other than the cost of the entertainment provided;
(b) We felt we could distinguish the facts in this case from those found in Doak v Bedford 1964 on the basis that as a higher admission price had been charged previously, the supply of intoxicating liquor on this occasion amounted to a bona fide gift and did not amount to a sale, or a transaction in the nature of a sale, for which a Justices' Licence would be required."
The question for the court was:
"Were the justices wrong in finding that the provision of intoxicating liquor to a person who makes a payment to enter the premises upon which the liquor is provided, but who makes no further payment for the provision of the liquor amounts to a bona fide gift of the liquor to that person and does not constitute a sale of the liquor to that person, or a transaction in the nature of a sale, for which the person providing the liquor is required to hold a Justices' Licence authorising the sale of the liquor?"
I start with the statutory provisions. They have been helpfully set out in the Appellant's skeleton argument. So far as it is material, section 160(1)(a) of the Licensing Act 1964 reads:
"….. if any person-
(a) sells or exposes for sale by retail any intoxicating liquor without holding a justices' licence ….. authorising ….. the sale of that liquor …..
…..
he shall be guilty of an offence under this section."
Section 196(1) of the Act reads:
"Evidence that a transaction in the nature of a sale of intoxicating liquor took place shall, in any proceedings relating to an offence under this Act, be evidence of the sale of the liquor without proof that money passed."
It is worth noting that that subsection merely repeats subsections in almost precisely similar terms in the previous legislation relating to justices' licences.
It is contended, on behalf of the prosecution, in a short and succinct argument, that the Justices were misled by two factors in this case. Firstly, the fact that the price of admission had been reduced from £6 to £5 in the week after the licence had been revoked. Second, it is contended that the intention of the owner of the business to give the drink away for free is, in fact, irrelevant.
Our attention was drawn by Mr Ryan, for the Appellant, to the case of Doak v Bedford [1964] 2 QB 587. The facts are these, and are set out in the headnote:
"The defendant, who was not the holder of a justices' licence authorising her to hold an excise licence for the sale of intoxicating liquor, held what she referred to as 'social parties' at premises which she occupied. The parties began in the evening and continued until "after midnight. There was music from a radiogram and dancing and both intoxicating liquor and soft drinks were available as well as some food. No payment was made to her or anyone else at the parties, but those attending paid various sums ranging from 10s to £1 earlier on the same day or during the preceding day or days. No one served drink, those attending being permitted to help themselves to such drinks as were available, there being no restriction on the number of drinks any one person was allowed to consume. No one was obliged to drink intoxicating liquor, and not all those attending did so. On January...
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