Linnett v Commissioner of Police for the Metropolis

 

Linnett v Commissioner of Police for the Metropolis

LEISURE AND LICENSING: CRIMINAL; Criminal Law

KING’S BENCH DIVISION

LORD GODDARD LCJ, HUMPHREYS AND HENN COLLINS JJ

30, 31 JANUARY 1946

Intoxicating Liquors – Licensed premises – Co-licensees – “Keepers” – Management and sole control in one of two co-licensees – Knowingly permitting

disorderly conduct on premises – Liability – Metropolitan Police Act, 1839 (c 47), s 44.

The appellant was employed as a secretary of a company owning several establishments licensed for the sale of intoxicating liquor, the licences being held

jointly by the appellant and the managers of the respective establishments. In respect of one of these licensed premises, the appellant and the manager were

both charged and convicted under the Metropolitan Police Act, 1839, s 44, as keepers of premises on which disorderly conduct was knowingly permitted. It

was found by the metropolitan police magistrate that the appellant had never at any time been on the premises which 􀂭 380􀀉 were in the sole control of the

manager. An appeal from this decision to quarter sessions was dismissed and, at the instance of the appellant, a case was stated for the opinion of the High

Court. It was contended for the appellant that (i) he was not a “keeper” of the premises within the meaning of the Metropolitan Police Act, 1839, s 44; (ii) he

was never on the premises, nor had he any knowledge of the conduct which had taken place on the premises:—

Held – (i) As a joint holder of the licence to sell intoxicating liquor on the premises, the appellant was a “keeper” of the premises within the meaning of the

Metropolitan Police Act, 1839, s 44.

(ii) although the appellant had not actually conducted the business carried on at the licensed premises, the facts showed that he had delegated his rights

and duties as a licensee to the manager, a co-licensee; he must, therefore, accept responsibility for the disorderly conduct permitted on the premises.

Allen v Whitehead applied.

Notes

Notwithstanding the absence of mens rea, it has been held under various statutes that a man may be liable for “knowingly” doing or permitting certain acts

which have in fact been done or permitted by his servant acting within the scope of his authority. It is held in this case that the principle underlying this

liability is not the relationship of master and servant, but the broad principle expressed in the maxim “qui facit per alium facit per se.” Accordingly, a licensee

of licensed premises cannot avoid liability for permitting disorderly conduct by leaving the whole management and control of the premises to a co-licensee,

both being “keepers” of the premises by reason of the grant of the licence.

As to Keeping Disorderly Houses, see Halsbury, Hailsham Edn, Vol 19, pp 154–156, paras 376–379; and for Cases, see Digest, Vol 30, pp 93, 94, Nos

711–721.

Cases referred to in judgments

Somerset v Hart (1884), 12 QBD 360, 25 Digest 431, 304, 53 LJMC 77.

Allen v Whitehead [1930] 1 KB 211, Digest Supp, 99 LJKB 146, 142 LT 141.

Appeal

Appeal by way of case stated by the court of quarter sessions for the county of London, who dismissed the appeal of the appellant against a conviction by a

metropolitan police magistrate under the Metropolitan Police Act, 1839, s 44. The facts are fully set out in the judgment of Lord Goddard LCJ.

Gilbert Paull KC and Sidney Lamb for the appellant.

Vernon Gattie for the respondent.

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31 January 1946. The following judgments were delivered.

LORD GODDARD LCJ. This is a case stated by quarter sessions for the county of London, who dismissed an appeal by the present appellant, Geoffrey

Samuel Johnston Linnett, who had been convicted by a metropolitan magistrate of an offence under the Metropolitan Police Act, 1839, s 44, which provides:

‘Every person who shall have or keep any house, shop, room, or place of public resort within the metropolitan police district, wherein provisions,

liquors, or refreshments of any kind shall be sold or consumed (whether the same shall be kept or retailed therein or procured elsewhere) and who shall

wilfully or knowingly permit drunkenness or other disorderly conduct in such house, shop, room or place, or knowingly suffer any unlawful games or

any gaming whatsoever therein, or knowingly permit or suffer prostitutes or persons of notoriously bad character to meet together and remain therein,

shall for every such offence be liable to a penalty of not more than five pounds … ’

The facts of the case seem to be these. The licensed premises or the place of public resort where liquor was sold was a public house in Piccadilly known

as Ward’s Irish House, and that belongs to a company called Ward’s Catering Co Ltd. The appellant is employed, as the case finds, as its secretary and

salaried servant, but the licence for selling intoxicating liquors at these premises was a joint licence granted by the licensing justices to the appellant and to one

Baker, who was also a servant of the company. It appears that Linnett, the appellant, although he was one of the licensees, took no part in the management of

the premises but left them entirely to his co-licensee Baker.

The premises were ill-conducted, but it is unnecessary to go into any details with regard to the facts which constituted the offence. There was a summons

taken out and there was a conviction by a metropolitan police magistrate for allowing these premises to be improperly conducted. The magistrate convicted

both Linnett and Baker. The quarter sessions upheld the conviction 􀂭 381􀀉 of Linnett, who appealed—Baker did not appeal—and the case has been stated at

the instance of Linnett. Two points have been taken on his behalf. The first point is that it is said he was not the keeper of the house. That is a point which

the court has no difficulty in disposing of quite shortly. The licence to sell intoxicating liquor was granted to him and to Baker; it was a joint licence. Under

that joint licence the premises were opened or kept open and liquor was sold under that licence. We are not concerned with what might have happened if the

licence had been granted to these two men and nothing at all had been done under it, if, for instance, they had not taken out an excise licence, or if they had

never sold, but intoxicating liquor having been sold at these premises under this licence, it cannot be said, in my opinion, that both the licensees were not

keeping this house. Liquor was being sold by them, and only by them, because it could not have been lawfully sold by any other person.

Counsel for the appellant has argued that a licence is a mere permission. In one sense that is perfectly true, but if the person to whom the licence has

been granted, who holds that licence, proceeds to sell liquor under that licence, it is impossible, in my opinion, to say that he is not the person, or one of the

persons, who is keeping the house. It is quite true that a keeper of the house for the purposes of this section need not necessarily be a licensee, but it is

difficult indeed to see how the licensee of a house which is being conducted as licensed premises is not the keeper of the house. In my opinion, it is quite clear

that Linnett was a keeper of the house just as much as Baker was a keeper of the house, and that point therefore fails.

There is a little more to be said about the other point. Having read the section, the offence, as I have already pointed out, is knowingly permitting certain

conduct and other things to take place at the house, and it is said that the case finds here that the entire management of the house was left to Baker, that the

appellant was never there, and that he in fact had no knowledge of the conduct which took place at that house and that he cannot be convicted of knowingly

permitting this conduct to take place. There are many cases, of course—it is unnecessary to go through them all—both under the Licensing Act, the Food and

Drugs Act and various other Acts, in which persons have been held liable because their servants or their managers have done certain acts, knowingly done

certain acts, and their knowledge has been imputed to the master. One has to see what the principle is that underlies those decisions. The principle does not,

in my opinion, depend merely upon the legal relationship between the two persons, the person who actually permitted with knowledge and the person who is

convicted although he had no actual knowledge. The point does not, as I say, depend merely on the fact that the relationship of master and servant exists; it

depends on the fact that the person who is responsible in law as the keeper of the house, or the licensee of the house if the offence is under the Licensing Act,

has chosen to delegate his duties, powers and authority to somebody else.

The case which at first sight may cause some little difficulty is Somerset v Hart, the head-note of which is:

‘Where gaming had taken place upon licensed premises to the knowledge of a servant of the licensed person employed on the premises, but there

was no evidence to show any connivance or wilful blindness on the part of the licensed person, and it did not appear that the servant was in charge of the

premises: Held, that the justices were right in refusing to convict the licensed person of suffering gaming on the premises under the Licensing Act,

1872, s. 17.’

That case seems to me to depend entirely on this, that there was no delegation by the master of his powers and duties of management to his servant. It was not

a case in which the master had left the management of the house to a servant or a manager. It was a case in which the master, being in active personal

management of the premises, his servant did something or allowed something to take place which he ought no doubt to have reported to his master and did not,

and the court said that the master would not be convicted for knowingly doing something because he did not in fact know that it was being done. That case

seems to me to have no application to a case where the master entrusts a servant or other person with the management of his house and the conduct of his

house. If he chooses to delegate his powers to some other person, then the 􀂭 382􀀉 knowledge of that other person becomes, to use a convenient expression,

the principal’s knowledge.

In this case, no relationship of master and servant exists between the two licensees, but they were joint licensees, and if one licensee chooses to say to his

co-licensee: “We both hold licences, we are both keepers of the house, but I am not going to take any part whatever in the management, I leave it entirely to

you,” he is putting that other one into his shoes and he must then take responsibility for the acts which his co-licensee, who is placed there by him to exercise

his own powers and duties, does, and he must take responsibility for what is done. That seems to me to be the principle which underlies all these cases. I am

far from saying, and I do not wish it to be thought I am saying that where the Act provides that a certain thing shall be an offence if it is knowingly done, that

then if the thing is done without the knowledge of the person who is himself carrying on the business and is in charge of the business but some act is done

without his knowledge and which, therefore, he was powerless to prevent, that he necessarily commits an offence; but if he chooses to delegate to somebody

else the carrying on of the business, whether that other person is a servant of his or not, then it seems to me it puts him in such a position that what he does or

what he knows must be imputed to the person who puts the other one into that position.

In these circumstances, it seems to me, therefore, that quarter sessions came to a right conclusion. I should be very sorry if it were thought, as I think part

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of the argument counsel for the appellant went, that the licensee who carries on a business or to whom is given a licence enabling him to carry on a business

and who does open and carry on a business under that licence, does not thereby undertake responsibilities and duties which the various Acts have put upon him

or that he can get out of them merely by saying that somebody else holds also a licence with him and he can do as he likes and say “I am not going to take any

part in the business.” The answer is that by taking a licence he does incur responsibilities, and if he does not feel himself in a position to take those

responsibilities he should not take a licence.

Under these circumstances, this appeal fails and must be dismissed with the usual result.

HUMPHREYS J. I am of the same opinion. On the first point I would only add that I think it is not merely a coincidence that when one looks at the

language of the Act which for the first time instituted the General Annual Licensing Meeting, the words of the first time instituted the General Annual

Licensing Meeting, the words of the first section of the Act are: “Justices are authorised to hold a meeting for the purpose of granting licences to persons

keeping or about to keep inns, alehouses,” and throughout the series of Licensing Acts one finds that that notion still remains. The person who is licensed is

the person who is the keeper of the house or, if the house if not built, a person who desires to become the keeper of the house when built.

With regard to the second point, I think the matter is covered by Allen v Whitehead, which was decided upon precisely the ground on which Lord

Goddard LCJ,—and I entirely agree with every word of his judgment—has held that this case should be decided, not upon any nice question of the law of

master and servant or even principal and agent, but upon this broad ground, that a licensed victualler may in certain circumstances say: “I am not going to

carry on this business myself; I am going to delegate my authority to somebody else,” but if he does that, then he is responsible for the act of the person to

whom he has delegated his authority, not only for his act but for his knowledge in the sense that the knowledge of the person to whom is delegated the

authority is the knowledge of the delegator. The only distinction between that case and the present is to be found in the fact that here there is somebody else

as well as the appellant who is also a licensee. In my opinion, it makes not the smallest difference. The facts show that the appellant did delegate all his

authority to do all acts which he had power to do under the licence to a gentleman who happened to be a joint licensee. I cannot for the life of me see why that

should excuse him in any way when he would not be excused if he had not been a joint licensee. I, therefore, agree that the appeal should be dismissed.

HENN-COLLINS J. I agree. So far as the first point is concerned, it may be that a licensee who has done nothing at all under his licence has not become the

keeper of the place to which the licence relates, but when once the 􀂭 383􀀉 business the licence contemplates is carried on from the spot named in the licence, I

have no doubt at all that the holder of the licence is the keeper of that place. In this case there were two licensees, each of whom, as it seems to me, had the

advantages which the licence conferred and the obligations of the licence. One of the two licensees in this case said, in effect: “I am not doing anything at all

in my position as licensee; I am going to leave it all to the other man.” The result of that was that he, the present appellant, had delegated the whole of his

powers and obligations under the licence to the manager. In those circumstances, if there be such a delegation, it is perfectly clear on authority, the last case

being Allen v Whitehead, that the knowledge of the person who has delegated is the knowledge of the other party.

For these reasons, I come to the conclusion that the magistrates were right and that the question should be answered accordingly.

Appeal dismissed with costs.

Solicitors: J E Lickfold & Sons (for the appellant); Solicitor to the Metropolitan Police (for the respondent).

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 384