Published: Wed, 07 Mar 2018
Ferguson v Weaving  1 KB 814
Waiters acting contrary to instructions and liability of the licensee
The licensee instructed the waiters to make sure that customers in his public house did not continue to drink intoxicating substances on the premises after 10 pm. Shortly before 10 pm, the licensee issued an appropriate signal (by electric lighting) to warn about taking the last orders. Another signal was given at 10 pm. One group of waiters ignored the instructions and failed to ensure that drinks were no longer consumed by the time the second signal came. The police entered the premises shortly after 10pm and found that several customers were still drinking alcohol. They charged the customers with an offence under s.4(b) of the Licensing Act 1921 for consuming alcohol outside of permitted hours; they also charged the licensee with counselling and procuring this offence.
The licensee argued that there was no provision in the Licensing Act 1921 that created a substantive offence of a licensee’s failure to stop people from consuming intoxicating substances outside of permitted hours. Thus, such an omission cannot in itself make the licensee guilty of counselling and procuring her customers to violate s.4, when she was not directly aware of the customers’ actions and she already entrusted the waiters (who were actually aware of the situation) the control and management of the premises.
The Court, accepting the licensee’s argument, held that the licensee could not be guilty of counselling and procuring, if she had no knowledge of the principal offence. In order to find the licensee guilty, it should be proved that she knew the essential matters which constituted the offence. As the licensee entrusted the waiters to control and manage the room in question, and as the 1921 Act did not make knowing permission a substantive offence, the waiters’ knowledge could not be imputed to her and she could not have counselled or procured the commission of the offence.
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