Case Cundy v Le Cocq PDF

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The Case Cundy v Le Cocq for Criminal Law...

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Cundy v Le Cocq Also reported 13 QBD 207; 53 LJMC 125; 51 LT 265; 48 JP 599; 32 WR 769

QUEEN'S BENCH DIVISION

Stephen and Mathew JJ 26 MAY 1884 26 May 1884 Licensing – Offence – Sale of liquor to drunken person – Absolute prohibition – Relevance of knowledge by licensee of customer's drunken state. By s 13 of the Licensing Act, 1872: "If any licensed person permits drunkenness or any violent, quarrelsome, or riotous conduct to take place on his premises or sells any intoxicating liquor to any drunken person, he shall be liable to a penalty …"

The effect of the section held to be that the sale of intoxicating liquor to a drunken person was absolutely prohibited, and it was no answer to a prosecution under the section to show that the licensee or his servants did nit know or had not the means of knowing that the person to whom the liquor was sold was drunk.

Notes

The Licensing Act, 1872, s 13, has been repealed. See now s 136 of the Licensing Act, 1953, which prohibits the sale of intoxicating liquor to drunken persons in the same terms.

Considered: Newman v Jones (1886) 17 QBD 132. Applied: Bond v Evans, [1886-90] All ER Rep 1035. Considered: Somerset v Wade, [1891-4] All ER Rep 1228; Ferguson v Weaving, [1951] 1 All ER 412. Referred to: Burrows v Rhodes, [1895-9] All ER Rep 117; Hobbs v Winchester Corpn, [1910] 2 KB 471; Grade v DPP, [1942] 2 All ER 118.

As to selling intoxicating liquor to drunken persons, sec 22 HALSBURY'S LAWS (3rd Edn) 681; and for cases see 30 DIGEST (Repl) 96. For the Licensing Act, 1953, s 136, see 33 HALSBURY'S STATUTES (2nd Edn) 266.

Cases referred to:

(1) R v Prince (1875) LR 2 CCR 154; 44 LJMC 122; 32 LT 700; 39 JP 676; 24 WR 76; 13 Cox CC 138, CCR; 14 Digest (Repl) 52, 181.

(2) R v Bishop (1880) 5 QBD 259; 49 LJMC 45; 42 LT 240; 44 JP 330; 28 WR 475; 14 Cox CC 404, CCR; 14 Digest (Repl) 37, 77.

Also referred to in argument:

Somerset v Hart (1884) 12 QBD 360; 53 LJMC 77; 48 JP 327; 32 WR 594, DC; 14 Digest (Repl) 46, 136.

Mullins v Collins (1874) LR 9 QB 292; 43 LJMC 67; 29 LT 838; 38 JP 629; 22 WR 297; 30 Digest (Repl) 103, 761.

Nichols v Hall (1873) LR 8 CP 322; 42 LJMC 105; 28 LT 473; 37 JP 423; 21 WR 579; 14 Digest (Repl) 37, 66,

R v Woodrow (1846) 15 M & W 404; 2 New Mag Cas 1; 2 New Sess Cas 346; 16 LJMC 122; 10 JP 791; 153 ER 907; 14 Digest (Repl) 36, 57.

A-G v Lockwood (1842) 9 M & W 378; affirmed sub nom Lockwood v A-G, 10 M & W 464; 152 ER 552, Ex Ch; 39 Digest 235, 103.

Hearne v Garton (1859) 2 E & E 66; 28 LJMC 216; 33 LTOS 256; 23 JP 693; 5 Jur NS 648; 7 WR 566; 121 ER 26; 14 Digest (Repl) 37, 76.

Roberts v Egerton (1874) LR 9 QB 494; 43 LJMC 135; 30 LT 633; 38 JP 485; 22 WR 797, DC; 25 Digest (Repl) 95, 191.

Fitzpatrick v Kelly (1873) LR 8 QB 337; 42 LJMC 132; 28 LT 558; 38 JP 55; 21 WR 681; 25 Digest (Repl) 83, 104.

R v Forbes and Webb (1865) 10 Cox CC 362; 14 Digest (Repl) 51, 176.

Davies v Harvey (1874) LR 9 QB 433; 43 LJMC 121; 30 LT 629; 38 JP 661; 22 WR 733; 14 Digest (Repl) 42, 100.

[1881-85] All ER Rep 412 at 413 Case Stated by the stipendiary magistrate sitting at West Ham. On 1 February 1884, the defendant, a licensee, was charged under the Licensing Act, 1872, s 13, with selling intoxicating liquor to a drunken person. It was proved that there had been a sale of intoxicating liquor, and that the person served was drunk, but it was also proved that neither the licensee nor his servants had noticed that the person served was drunk, and that the drunken person, while in the licensed premises, had been quiet in his demeanour and had done nothing to indicate insobriety, the evidence showing that there was no apparent indication of intoxication. Upon the evidence, it was contended for the licensee that there was nothing to show any knowledge or means of knowledge on the part of the licensee or his servants that the person served was drunk. The magistrate convicted the licensee, holding that the offence was complete on proof that a sale had taken place and that the person served was drunk, and that it was unnecessary to determine whether the licensee or his servants knew, or had the means of knowing, that the person served was drunk, or could, with ordinary care, have detected the drunkenness. The question for the opinion of the court was, whether the construction placed by the magistrate on the section was right, or whether in arriving at his decision it was necessary for him to consider whether or not the licensee or his servants knew or had the means of knowing, or whether they could with ordinary care have detected, that the person served was drunk.

Besley for the licensee RS Wright (Danckwerts with him) for the prosecutor.

STEPHEN J: I am of opinion that this conviction should be affirmed. The case turns upon the question whether the words of s 13 of the Licensing Act, 1872 - the section under which the conviction took place - taken in connection with the general scheme of the Act, should be read as implying that a licensed person, before he can be convicted under that section of selling intoxicating liquors, must know, or have reasonable means of knowing, that the person served was drunk, or whether the section amounts to an absolute prohibition against selling intoxicating liquor to a drunken person, even when the seller had no such knowledge. I am of opinion that the words of the statute amount to an absolute prohibition of the sale of intoxicating liquor to a drunken person, and that if the person selling the liquor did not know, or had not the means of knowing, that the person served was drunk, this is no answer to the charge, but is

merely a matter to be urged in mitigation of the penalties imposed by the section. I come to this conclusion, not only in consequence of the general object of the Act, which is an Act for the prevention of drunkenness, but also by a comparison of the sections dealing with "offences against public order."

In some of these sections the word "knowingly" is introduced; for instance, by s 14, a penalty is imposed upon a licensed person who "knowingly" permits his premises to be the habitual resort of prostitutes, and by s. 16 a penalty is imposed for "knowingly" harbouring a constable. In those cases knowledge is necessary to constitute the offence. But in the section we are now dealing with, the word "knowingly" does not occur, and I believe the object of omitting the word was to throw on the publican the duty of finding out whether the person served was drunk or not, the consequence being that, if a customer is drunk, the publican or his servants must find out that he is drunk, or take the consequences of serving him.

On the other side it has been urged that the maxim of the criminal law, that before a person can be convicted of a crime there must be a "guilty mind," applies to this case. This maxim came into use in early times, when the criminal law was in an undefined state, for the guidance of those who administered that law, and in those times the maxim may have been of general application. A "guilty mind" is a necessary element in some crimes, but those crimes have now been defined, and the maxim has been superseded in consequence of the greater precision in the definitions of crimes, and now, the question whether a "guilty mind" is necessary

[1881-85] All ER Rep 412 at 414 to constitute an offence turns upon the words of each particular statute. R v Prince (1) shows that a guilty knowledge is not always necessary to constitute an offence; and R v Bishop (2) is to the same effect. The object of this part of the Act is to preclude all disputes whether the publican or his servants knew, or had reasonable means of knowing, that the person served was drunk at the time, the duty being thrown on the publican to find out that the person so served was not drunk. I think, therefore, that this conviction was right.

MATHEW J: I am of the same opinion. The language of this section is perfectly clear. This section would be altogether useless if the construction of counsel for the licensee were to prevail. It can be no hardship on the publican to have to find out whether the customer is drunk or not. It seems to me that the word "knowingly" was purposely omitted here. I quite agree with my brother STEPHEN that this conviction should be affirmed.

Solicitors: Peckham, Maitland & Peckham; Solicitor to the Treasury....