WILSON v ALLIED BREWERIES Ltd WILSON v CHIEFTAIN INNS Ltd
| Jurisdiction | Scotland |
| Judgment Date | 26 October 1985 |
| Docket Number | No. 4. |
| Date | 26 October 1985 |
| Court | High Court of Justiciary |
JC
Lord Hunter, Lords Robertson, Brand.
Procedure—Summary procedures—Complaint—Relevancy—Fair notice—Licensing—Supply of alcoholic liquor to under-aged persons—Whether necessary to name seller of liquor in complaint—Licensing (Scotland) Act 1976 (cap. 66), sec. 68 (1).1
Statutory offence—Licensing—Supply of alcoholic liquor to under-aged persons—Complaint—Relevancy—Fair notice—Whether necessary to name seller in complaint—Licensing (Scotland) Act 1976 (cap. 66), sec. 68 (1).1
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Sec. 68 (1) of the Licensing (Scotland) Act 1968 enacts, inter alia, that: "the holder of a licence or his employee or agent shall not in licensed premises sell alcoholic liquor to a person under 18, or allow a person under 18 to consume alcoholic liquor in a bar, nor shall the holder of the licence allow any person to sell alcoholic liquor to a person under 18."
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In two different cases, the holders of a public house licence and the persons responsible for the day-to-day running of the relative premises were charged with selling drink "by the hand of an employee or agent or other persons whose identity is meantime to the complainer unknown" to certain under-aged persons. The respondents challenged the relevancy and specification of the libel they faced in each case arguing before the sheriff (Young) that the identity of the seller had to be libelled in each complaint in order for the respondents to have fair notice of the cases they had to face. The sheriff upheld those submissions and dismissed the complaint in each case. The prosecutor thereafter appealed by way of notes of appeal against the sheriff's decision.
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Held, (1) that, in a case of an alleged contravention of sec. 68 (1) of the 1976 Act, where the prosecutor was unable to specify the name of the agent or employee or agent or other person by whose hand the alcoholic liquor was sold or allowed to be sold or who allowed the alcoholic liquor to be consumed, it might, nevertheless, be possible for the Crown to prove by direct evidence or inference that the prohibited act was that of someone who came within the required category; (2) that, the difficulty in such a case, if there be a difficulty would be one of proof and not of competency; (3) that, where the seller had not been named it was possible that the presentation of a statutory defence might be rendered more difficult but, on the other hand, if naming were necessary, circumstances could readily be envisaged in which the provisions of sec. 68 (1) could, without justification, be stultified; and, accordingly (4) that, naming of the seller in each case had not been necessary; and appeals allowed.
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Observed that, in view of the importance of age it was obviously desirable that the names of the under-aged persons to whom supply had been effected should, as a matter of fair notice, if possible, be done; but, where this was not done, although proof of the contravention might present difficulties it did not follow that a charge, otherwise properly libelled, would necessarily be irrelevant in the absence of such identification.
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Gray & Co. v. Mackenna (1899) 1 F. (J.) 65,distinguished.
Allied Breweries Ltd. and James Irwin were charged in the sheriffdom of North Strathclyde at Greenock on a summary complaint at the instance of A. Taylor Wilson, procurator-fiscal there the libel of which set forth that:—"[On] 4th January 1985, in The Jolly Sailor, Clyde Square, Greenock, being premises licensed in terms of sec. 9 of the Act aftermentioned, you Allied Breweries Ltd. and you James Irwin, the employee or agent of said Allied Breweries Ltd. responsible for the day-to-day running of said premises, being the holder of a public house licence (as defined in sec. 11 (2) and (3) of the Act aftermentioned), did by the hand of an employee or agent or other person whose identity is meantime to the complainer unknown, sell or allow to be sold alcoholic liquor to [A] and [B] persons then under eighteen years of age and did allow said [A] and [B] to consume said alcoholic liquor in said premises: contrary to the Licensing (Scotland) Act 1976, sec. 68 (1) and (7)." Chieftain Inns Ltd. and John Jamieson...
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