Davies v Carmarthenshire County Council

For a due diligence defence to a licensing offence, the court must assess the whole evidential picture. This includes the systems introduced by the employer, the training and supervision given to the employee, and evidence of how those systems operated in practice. Positive documentary and agreed evidence cannot be disregarded merely because the defendant is regarded as an unreliable witness. Where a case stated omits or presents material evidence in a materially one-sided way, the appellate court may be unable to uphold the rejection of the defence. The statutory defence requires proof of all due diligence to avoid the commission of the offence.

The claimant was the manageress and joint licensee of licensed premises. An employee sold intoxicating liquor to a 15-year-old test purchaser. The claimant was prosecuted under Licensing Act 1964, section 169, and relied on the due diligence defence in section 169(4)(b).

The magistrates found that adequate company systems existed but concluded that the claimant had failed to implement them sufficiently. On a case stated, the High Court considered whether the magistrates were entitled to reject the defence, having regard to evidence about training, written instructions, refusals of earlier sales and the till’s age-verification mechanism.

1. Appeal allowed. The question whether the justices were entitled to reject the due diligence defence was answered in the negative.
2. Section 169(1) of the Licensing Act 1964 prohibited the sale of intoxicating liquor to a person under 18 by the holder of the licence or the holder’s servant. Under section 169(4)(b), a licence holder charged by reason of another person’s act or default had a defence if the holder proved that all due diligence had been exercised to avoid the offence.
3. The assessment of due diligence required consideration of all material evidence. Relevant matters included the written training materials, staff notices, instructions at the till, the till’s automatic age warning and confirmation mechanism, signed due diligence documents, and records showing that the employee had previously refused prohibited sales.
4. The positive material was potentially important because it demonstrated both the systems adopted and their successful operation in practice. It did not depend on accepting the claimant’s account or assessing her personal reliability.
5. The magistrates’ case stated made scant or no reference to much of that material and presented some matters in a one-sided manner. Their adverse view of the claimant did not justify ignoring agreed or documentary evidence relevant to whether she had exercised due diligence.
6. In those circumstances, the High Court could not affirm the rejection of the defence. The appropriate order was that the appeal be allowed, with the costs of the proceedings in the High Court and magistrates’ court paid from central funds.

• Magistrates’ court: Rejected the claimant’s due diligence defence and convicted her of selling intoxicating liquor to a person under 18.
• High Court (Administrative Court): On a case stated, allowed the appeal and answered the legal question in the negative.