O’Flaherty J.
Murphy J.
Barron J.
82/98
THE SUPREME COURT

IN THE MATTER OF A CASE STATED PURSUANT
TO THE PROVISIONS OF SECTION 2 OF THE
SUMMARY JURISDICTION ACT, 1857 AS
AMENDED AND EXTENDED BY SECTION 51
OF THE COURTS (SUPPLEMENTAL
PROVISIONS) ACT, 1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Appellant
and
TIVOLI CINEMA LIMITED
Accused/Respondent

JUDGMENT delivered on the 7th day of December 1998 by BARRON J. [Nem Diss.]

(2)
The defendant is the proprietor of premises at Francis Street, Dublin known as the Tivoli Theatre. This is a custom built premises developed over the years 1986 to 1993.  On the first storey, there is a modern theatre. On the ground floor, there is also a modern theatre. It has a stage but there is no fixed seating.  The floor is concrete and depending upon the entertainment being provided, it may or may not have seating laid out for its audience.  The premises have all necessary planning permissions and local authority approvals.
The present proceedings relate solely to the use of the ground floor theatre for modern music late night concerts when the seating is not in use.
The defendant was at all material times the holder in respect of its premises of a music, singing and public entertainment licence issued under the provisions of the Public Health (Ireland) Act, 1890; and a licence under s. 7 of the Excise Act, 1835. Such premises were accordingly a “theatre”

(3)

for the purposes of the Intoxicating Liquor Act, 1927. S.1(1) of that Act (“the Act”) defines “theatre” as “a theatre or place of public entertainment licensed for the sale of intoxicating liquor under section 7 of the Excise Act, 1835”. Such licence is defined as a “theatre licence”.
To understand the nature of the present proceedings, it is helpful to consider the circumstances in which a licence can be issued under the provisions of s. 7 of the Excise Act, 1835. This section is as follows:

“... it shall be lawful ... to sell beer, spirits, and wine in any theatre established under a royal patent, or in any theatre or other place ofpublic entertainment licensed by the Lord Chamberlain or by justices of the peace, without the production by the person app lying for such licence or licences of any certificate or authority for such person to keep a common inn, ale house, or victualling house...”

(4)
The essential element so far as it relates to the present case is that s. 7 provides for a licence to issue to “other place of public entertainment”.  There is no specific definition of such other places of public entertainment. 
At the passing of the 1835 Act, s. 2 of the Disorderly Houses Act, 1751 provided, inter alia, that “any house, room, garden or other place kept for public dancing, music or other public entertainment of the like kind” required a licence. S. 51 of the Public Heath (Ireland) Act, 1890 provided that 
“a house, room, garden, or other place ... should not be kept or used for public dancing, singing, music, or other public entertainment of the like kind”
 without a licence.  This latter licence is now obtainable from the District Court as successor to the justices of the peace.  As the holder of such a licence the defendant was entitled to and obtained a licence under s. 7 of the Excise Act, 1835.  The basis of the entitlement is important when considering the issues raised in the present case.

(5)
The sale of intoxicating liquor in a theatre as defined by the Act is controlled by Part II of the Act which deals with prohibited hours in relation to the sale of intoxicating liquor. Sections 20 and 21 relate specifically to theatres, as defined. They are as follows:

“(20)(1) No person shall be admitted to any theatre after the hour of halfpast nine in the evening unless either -
(a) he has previously engaged or paid for a seat in that theatre for the performance or entertainment then in progress or about to commence, or
(b) he is employed in that theatre or has business with a person so employed.”

Subsection (2) provides that if anyone is admitted to a theatre in contravention of subsection (1) the holder of the theatre licence shall be guilty of an offence.

(6)

Section 21 provides:
“(1)	The provisions of this Act in relation to prohibited hours shall not apply to a theatre.

(2)	In this section the expression ‘permitted time’ means a period beginning half an hour before the commencement of a performance in the theatre in respect of which the expression is used and ending half an hour after the termination of such performance.”

Subsection (3) provides not only for the times at which but also for the persons to whom and the parts of the theatre in which it shall not be lawful to sell or expose for sale any intoxicating liquor. Subsection (4) makes breach of this provision an offence.
The downstairs theatre was visited on three occasions in 1994 by Garda Officers on nights when it is said by the defendant that late night concerts were taking place on the premises. On each occasion music was being played and there were a large number of patrons apparently dancing

(7)
or moving individually in time to the music, as well as a smaller number drinking intoxicating liquor at either of two bars on the premises.  The evidence on behalf of the prosecution was to the effect that recorded music was being played whereas the evidence on behalf of the defendant was to the effect that live music was being played other than during intervals when recorded music would have been played. The visits were all after 9.30 p.m.

Prosecutions were brought against the defendant on the following bases:

(1)	That as there were no seats, it was a breach of s. 20 of the Act to allow persons to enter after 9.30 p.m.;
(2)	as there was no performance on the evenings in question, there were no permitted hours and so breaches s. 21 of the Act; and
(3)	as some of those entering the premises had not prepaid for their

(8)

tickets there were breaches of both sections 20 and 21 of the Act.
The prosecutions having been dismissed, the prosecutor has appealed by way of case stated.  The questions which arise for determination are as follows:

(1)	Whether the District Judge was correct in law in determining that what was occurring during the inspection by members of An Garda Síochána about which evidence had been given before him amounted to a performance within the meaning of s. 20(1) of the Act of 1927.
(2)	If the answer to (1) is no, whether he was correct in law in finding that the playing of live music of the type described by one of the musical groups mentioned in evidence amounted to a performance within the meaning of s. 20(1) of the Act of 1927.
(3)	If the answer to (2) is yes, whether he was correct in law in finding that there was sufficient evidence before him that the intoxicating

(9)

liquor which had been sold or exposed for sale at the time of the inspections by the members of An Garda Síochána referred to in evidence, was sold or exposed for sale in a period beginning half an hour before the commencement of a performance in the theatre in question, or in the period ending half an hour after termination of such performance (“the permitted time”).

(4)	Whether he was correct in law in interpreting the word “seat” as including a place for standing, it being the undisputed evidence that there were no seats available for patrons at the premises of the accused on the occasions in question.

(5)	If the answer to (4) above is yes, whether he was correct in law in holding that the patrons who were admitted to the theatre on the occasions in question after 9.30 in the evening, having purchased their tickets at the kiosk across the lane from the entry to the

(10)

theatre, had “previously engaged or paid for a seat” within the meaning of s. 20(1)(a) of the Act of 1927.

To answer question 1, it is helpful first to point out that “theatre” is defined by the Act of 1927. Even though words are defined in statutes and other documents, there seems very often to be a tendency to give such words their ordinary meaning. That is apparent in the present case. The defendant has a licence to sell intoxicating liquor because his premises may be used for public entertainment whether provided by him or not.  It should not be assumed that it will be a performance as in a theatre proper. S. 20 itself recognises this distinction because it refers to “performance or entertainment”. On the other hand, s. 21 does not in the sense that the word “entertainment” is not used in that section.

It is clear that both ss. 20 and 21 were intended to control the sale of intoxicating liquor in premises which were outside the mainstream

(11)

of on-licences and off-licences. In practice, it purported to do so by assuming that such premises provided performances, but why the word “entertainment” is used in s. 20 is unclear.

These aims were addressed by s. 21. Subsection (3) which is particularly relevant is as follows:-

“(3) It shall not be lawful to sell or expose for sale by retail any intoxicating liquor in any theatre -
(a)	at any time other than during a permitted time, or
(b)	to any person other than persons who either -
(i) are then employed in the theatre, or
(ii)	have engaged or paid for seats in the theatre for the performance taking or which took place during the permitted time or either of the permitted times then current, or

(c)	in any part of the theatre which is then accessible to persons other than those persons to whom intoxicating liquor may then be sold in such theatre.”

(12)

The public attending the premises who may be served with intoxicating liquor are set out in subsection (3)(b)(ii). It is to be noted that they must attend a performance. I do not understand the reference to “the permitted time or either of the permitted times then current”, since “permitted time” is defined as being a period.  Further, since the singular includes the plural, it matters not whether the performance is construed in the singular by reference to the entire entertainment or in the plural as reference for example to separate acts separated by intervals. Nevertheless, if a member of the public does not buy a seat, he cannot on a literal interpretation be served at all, whether he intended to attend a performance or an entertainment.

Nevertheless, these places of entertainment have licences to serve intoxicating liquor and the sections cannot be construed as an implied revocation of such licences unless the audience is provided with individual

(13)

seats and an entertainment is provided for them in the form of a performance.

There can be little doubt but that the limitation placed by ss. 20 and 21 on theatre licences was to prevent a loophole in the law relating to intoxicating liquor licences. It was intended to allow intoxicating liquor to be served only to those who bona fide attended the premises so licensed for the purpose of the entertainment. Those who decided to purchase seats for the performance or entertainment after 9.30 p.m. were presumed to be doing so not for the purpose of the entertainment being provided, but rather to continue consumption of intoxicating liquor.

Since there is doubt as to the literal construction of the sections, use of the mischief rule would allow bona fide persons to be served even though no seats are provided. This however, does not explain the

(14)
meaning of the word “entertainment” in s. 20. While it might perhaps mean that the audience provided its own entertainment in contrast to performance when it was provided for them, this would mean the inclusion of the word in s. 21(3)(b)(ii) which is something which a court should do only as a last resort.

This latter problem is one which only the Oireachtas can solve. At present, there is uncertainty. The sections are penal sections in that they provide a criminal sanction. Accordingly, before a criminal sanction can be applied the defendant is entitled to know by clear and unambiguous language that such sanction will be applied in specified circumstances. There being a doubt as to those circumstances it follows that the defendant cannot commit an offence merely because there are no seats in its premises.

(15)
The remaining matter arising on the questions contained in the case stated relates to the legality of selling tickets after 9.30 p.m. at a kiosk which is not part of the theatre premises. It appears from the case stated that similar kiosks are used in other parts of the city of Dublin by well-known theatres without complaint from the garda authorities in those areas.

I would answer the questions as follows:

(1)	Performance as used in s. 20 of the Act relates to entertainment provided by the management of the premises and for which the public has paid for admission.  The playing of recorded music solely for the purpose of indicating an interval between different parts of the entertainment would not be so regarded.
(2)	Live music played by an advertised act being the purpose for which

(16)
the audience has paid its entrance money would be performance or entertainment within the meaning of s. 20 of the Act of 1927.
(3)	The answer to this question will depend upon the evidence as to the times of the performances or entertainment on the nights in question.
(4)	Yes. The word “seat” should be interpreted as including a place for standing.  The two sections should be interpreted on the basis that they were dealing not only with theatres but also with other places of public entertainment which might be organised on a slightly different basis.
(5)	Yes. They had paid their entrance money before they entered the theatre. This provision is intended to bar only those whose purpose is to continue the consumption of intoxicating liquor.

(17)
In the result, the appeal will be allowed.