Neutral Citation No  [2012] NICA 50	Ref:     	MOR8650	
			
Judgment: approved by the Court for handing down	Delivered:	20/11/12	
(subject to editorial corrections)*			

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
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ON APPEAL BY WAY OF CASE STATED UNDER THE MAGISTRATES' COURTS (NORTHERN IRELAND) ORDER 1981
 ________
Between:
DIRECTOR OF PUBLIC PROSECUTIONS
Appellant;
-and-
JOSEPH MAHON
Respondent.
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Before: Morgan LCJ, Girvan LJ and Coghlin LJ
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MORGAN LCJ (giving the judgment of the court)
[1]	This is an appeal by way of case stated by the DPP against the decision of a Deputy District Judge (Magistrates’ Courts) sitting at Enniskillen Magistrates’ Court on 5 October 2011 to dismiss three complaints against Joseph Mahon relating to selling and permitting the consumption of intoxicating liquor otherwise than during permitted hours on 23 and 31 October 2010 contrary to the Licensing (Northern Ireland) Order 1996 (the “1996 Order”).

Background

[2]	At all relevant times the respondent was the owner and operator of Mahon’s Hotel, Mill Street, Irvinestown, County Fermanagh. He was the holder of a licence permitting the sale of intoxicating liquor in hotel premises issued pursuant to Article 5(1)(c) of the 1996 Order. A portion of the premises had the benefit of extended hours under Article 44 of the 1996 Order so the permitted hours for the sale of intoxicating liquor were extended to 1.00 am.

[3] 	On 22 October 2010 Mr Cassidy ordered and paid for a function for 110 people on behalf of a trade union. He further paid for bed-and-breakfast that night in the premises for himself. The order and payment was evidenced by production of a copy invoice and was not disputed. No guest list or resident’s register was produced to the court at any stage of the proceedings.

[4] 	On 23 October 2010 at approximately 1:30 am Constable O’Rourke saw a number of people in the reception area of the hotel, heard music and witnessed approximately 60 people in the function area of the hotel dancing and consuming alcoholic drinks. At approximately 1:34 am he saw approximately 40 people in the main bar area and alcohol was being consumed. He observed a young male buying two cokes and one Bacardi and retrieved a till receipt totalling £5.50 confirming the sale of two cokes and one Bacardi at 1:42 am. He asked in the main bar for the last receipt from the till which showed the sale of one pint of Smithwick's at 1:15 am.

[5] 	On 30 October 2010 Mr McCollum paid for 35 meals and four rooms on behalf of a local society. The payment was evidenced by the production of a copy invoice from the hotel and again was not disputed. That morning at 2.15 BST or 1.15 GMT (the clocks changed over at 2 am that morning) Constable O’Rourke heard noise from the rear of the said hotel premises and observed approximately 100 people, the majority drinking alcoholic drinks. Most of these people were wearing fancy dress. The bar area was closed and shuttered and the Constable was advised by door staff that some of those present were guests. On 8 December Constable O’Rourke returned to the premises and cautioned the respondent in relation to the subject offences. After caution the respondent replied "they were guests as far as I can recall; they are in the book.” The Constable asked for a copy of the book but was told it was on the computer and could not be produced. That was a surprising answer. Article 24 of the Tourism (Northern Ireland) Order 1992 imposes an obligation on hotel establishments to keep a visitors register and the Certified Tourist Establishments (Visitors Register) Regulations 1992 require the register to contain the name, permanent address and nationality of the visitor, the date of arrival and departure and by Regulation 3 the register must be kept in written or printed form.

[6] 	Constable O'Rourke accepted that he made no particular investigation as to whether any of those who consumed or purchased alcohol on the two dates in question after 1 am were residents of the hotel or guests of residents. He accepted that the invoices produced were genuine. He said that if he had been shown the invoices that would have been the end of the matter. He indicated in cross-examination that the respondent never gave an explanation about prepaid guests at a function until these matters were put to him in cross-examination.

The statutory background

[7] 	The offences with which this appeal is concerned are found in Article 41 of the 1996 Order.

“41. - (1) Except as permitted by or under this Order, a person shall not-

(a) 	himself or by his servant or agent-

(i) 	sell intoxicating liquor in licensed premises, or

(ii) 	permit the consumption of intoxicating liquor in licensed premises…

except during the permitted hours.

(2) 	Any person who contravenes this Article shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

Article 46 is headed “Exceptions” with the sub-head “Exceptions from prohibition of sales, etc., of intoxicating liquor outside permitted hours.”

“46. - (1) Where intoxicating liquor is sold in licensed premises during the permitted hours, Article 41 shall not prohibit or restrict-

(a) 	during the first 30 minutes after the conclusion of the permitted hours the consumption or permitting consumption of the liquor in the premises..

(2) Article 41 shall not prohibit or restrict-

(a) 	the sale of intoxicating liquor to a resident in premises of a kind mentioned in Article 5(1)(a) which provides accommodation for guests such as is mentioned in paragraph (3) or in an hotel or in a guest house; or..

(c) 	the consumption or permitting consumption of it in such premises, hotel or guest house by a resident or his guests..”

[8] 	Article 124 of the Magistrates’ Courts (NI) Order 1981 (the 1981 Order) is found in Part 10 of the Order dealing with witnesses and evidence. It is headed “Onus of proving exceptions in proceedings upon complaint” and provides as follows:

“124. - (1) When the defendant to a complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, the burden of proving such exception, exemption, proviso, excuse or qualification shall be on him.

(2) This Article shall have effect whether the exception, exemption, proviso, excuse or qualification relied on-

(a)	accompanies or does not accompany the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded; or

(b) 	is or is not expressly specified or negatived in the complaint.”

[9] 	The Deputy District Judge rejected a submission that the onus of proving that the sale was to a resident of the hotel or that the consumption was by a resident or his guest was on the respondent. He therefore dismissed the complaints on an application for a direction. The questions for the court are:

(i) 	In a charge of selling alcohol to persons on hotel premises contrary to Article 41(1)(a)(i) of the 1996 Order does the prosecution bear the burden of proving that the sale was not to a resident of the hotel?

(ii) 	In a charge of permitting consumption of alcohol by persons on licensed premises after hours contrary to Article 41(1)(a)(ii) of the 1996 Order does the prosecution bear the burden of proving that alcohol was consumed by persons who were not residents or guests of residents of the hotel?

Consideration

[10] 	The general rule in criminal law is that the prosecution must establish the guilt of the accused other than where the defence of insanity is raised or the defendant relies on a statutory exception in which case the defendant must establish the exception on the balance of probabilities. The development of the position in relation to statutory exceptions was reviewed extensively by the English Court of Appeal in R v Edwards [1975] QB 27. That was a case in which the defendant had been convicted in the Crown Court of selling intoxicating liquor without a licence. The prosecution had called no evidence that the defendant did not have a licence and he appealed on the ground that the burden of establishing this was on the prosecution. The court considered the history of the development of the statutory exception particularly, but not exclusively, in the context of statutes regulating the provision of alcohol to members of the public, game licences in the nineteenth century and the licensing of commercial activities between 1939 and 1945. The court characterised the statutory exception as follows:

“It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception.”

In broad terms this reflects the terms of Article 124 of the 1981 Order. 

[11] 	The issue was revisited in R v Hunt [1987] AC 352. The appellant had been convicted of possession of a controlled drug. The provision rendering the possession unlawful was subject to another section which provided for regulations which stated that the provision was not to have effect if the strength of the drug was below a certain level. The prosecution had not introduced evidence of the strength of the drug and the issue was whether the regulations were properly characterised as a statutory defence in which case the onus was on the defendant or whether they defined the strength of the drug that had to be in the possession of the accused before that possession became unlawful and consequently defined the offence.

[12] 	In Hunt the appellant contended that Edwards was wrongly decided and that the statutory exception only arose when the exception was contained in the same clause as the offence and if it arose it only gave rise to an evidential burden on the accused. Lord Griffiths gave the leading speech with which two other members of the House agreed. He summarised the law as follows:

“I would summarise the position thus far by saying that Woolmington [1935] A.C. 462 did not lay down a rule that the burden of proving a statutory defence only lay upon the defendant if the statute specifically so provided: that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly: that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.”

He accepted that the characterisation set out at paragraph 10 above from Edwards was an excellent guide to construction but noted that each case must turn on the construction of the particular statute to determine whether the offence is an exception.

[13] 	In considering the construction of the statute in Hunt Lord Griffiths relied on the approach of the majority in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 that:
 
“if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case and a court should be very slow to draw any such inference from the language of a statute.”

He considered that there was ambiguity in the statutory provisions. Since the substance was usually seized by the police for the purpose of analysis there was no difficulty in producing evidence on behalf of the prosecution as to the strength of the drug. On the other hand the accused had no statutory entitlement to a proportion of the drug for analysis and if the quantities were small it might be destroyed in the course of analysis by the prosecution. The House held, therefore, that the onus remained on the prosecution.

Conclusion

[14] 	In order to establish whether Article 124 of the 1981 Order is engaged the starting point is the ordinary meaning of the words of the statute. The opening words of Article 41 introduce the language of exception and this is further enhanced by the heading and sub-heading of Article 46. Both parties agree that the heading and sub-heading can be taken into account in interpreting the legislation (see R v Montila [2004] UKHL 50). A prosecution for this offence was always going to take place in the Magistrates’ Court so a description of the provision as an exception would necessarily engage Article 124 of the 1981 Order.

[15] 	Mr Hutton for the respondent submitted that the language was but one indicator and that the court should also look at the statute as a whole to establish the mischief at which it is aimed and the ease or difficulty that the respective parties would encounter in discharging the burden. If the discharge of the burden was onerous for the accused Lord Griffiths regarded this as a factor of great importance. The respondent submitted that the mischief of the statute in this area was to prohibit after hours drinking by those who were not residents. The provision in relation to residents in Article 46 was, therefore, an indicator of the substantive offence rather than an exception.

[16] 	We do not accept that submission. The statutory exception principle set out in Article 124 captures those circumstances where an act is prohibited save by persons with specified qualifications. The qualification in this case is the status of being a resident. The qualification in R v Edwards was the holding of a liquor licence. The development of this jurisprudence was in the context of this type of regulatory legislation. This is a paradigm case for the engagement of Article 124.

[17] 	The second element of the submission concerned the difficulty that the accused would have in discharging the burden. The exception arises in relation to residents and their guests. “Resident” is defined in the 1996 Order as meaning a guest or traveller who has lodged in the hotel for the preceding night or has in writing engaged a room for the succeeding night. Whichever of those conditions applies must be known to the licence holder and his staff since without that knowledge they would not know whether to serve the person alcohol. The licence holder and his staff must also establish which individuals are guests of the resident since otherwise they cannot be allowed to consume alcohol. The police officer arriving at the premises would be completely unaware of whether a particular individual lodged in the hotel the previous night or had in writing engaged a room for the succeeding night. He could not, therefore, establish the status of a person claiming to be a resident without access to the records of the hotel or conducting an enquiry with staff and others as to the accommodation arrangements for the preceding night. We consider, therefore, that the relevant information for the exception lies peculiarly within the knowledge of the licence holder and his staff and that he is, therefore, well positioned to address the burden.

[18] The respondent submits that a police officer exercising the powers in Article 71 of the 1996 Order to inspect premises has power under PACE to seize documents which he has reasonable grounds to believe are evidence in relation to any offence he is investigating if it is necessary to do so in order to prevent the documents being concealed, lost, damaged, altered or destroyed. This is a stringent condition and it is by no means clear that it could have applied to the circumstances investigated by the officer in this case. The alternative for a police officer who wishes to obtain documents in these circumstances is to seek a warrant from a lay magistrate. Each of these alternatives demonstrates the difficulties facing a police officer seeking to gather relevant evidence and in any event would not necessarily assist in relation to an assertion that the person had lodged in the hotel the previous night.

[19]	The final submission made by Mr Hutton was that the imposition of a persuasive burden was contrary to the presumption of innocence in Article 6 ECHR and that if we were against him in his other submissions we should construe this as an evidential burden. He relied on the decision of the Divisional Court in DPP v Wright [2009] EWCA 105 (Admin) where the court held that the exemptions in the Hunting Act 2004 should give rise only to an evidential burden. The reasoning was that many prosecutions would be unfairly balanced if the legal burden was placed on the defendant. That caused the court to reject the imposition of a persuasive burden for the reasons given in R v Hunt and also because the imposition of such a burden would be a disproportionate interference with the presumption of innocence.

[20] 	It is common case that a reverse persuasive burden does not necessarily offend the presumption of innocence in Article 6 ECHR. Lord Bingham in Sheldrake v DPP [2004] UKHL 43 said that the task for the court was to decide whether a reverse burden enacted by Parliament unjustifiably infringed the presumption of innocence. In R v Johnstone [2003] UKHL 28, a trade mark case, Lord Nicholls said that the court will reach a different conclusion from the legislature only where it is apparent that the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until found guilty. Reverse onus presumptions must, however, be kept within reasonable limits (see Salabiaku v France (1991) 13 EHRR 379). 

[21] 	Applying these principles to the circumstances of this case we are satisfied that the information necessary to rebut the prosecution case is peculiarly within the knowledge of the respondent. The prosecution on the other hand would have considerable difficulty establishing that the persons involved were not residents or guests of residents to the criminal standard. What is at stake for the respondent in the first instance is a fine and penalty points. The imposition of further points may give rise to the possibility of suspension of the licence but that would not follow if convicted of these offences alone. There is no question of imprisonment. We do not consider that the imposition of a persuasive burden in this case unjustifiably infringes the presumption of innocence.

[22] 	For the reasons given we answer each of the questions No. We remit the case to the Deputy District Judge to determine according to law in light of this judgment.