H.S.E. -V- Brookshore Ltd

High Court decision in relation to smoking ban

High Court decision in relation to smoking ban. What is a roof?

(1) The part of the premises mentioned in the charge was covered by a moveable roof. It was not wholly uncovered by a roof or a retractable roof. The exception to the smoking ban therefore did not apply.

(2) The material which makes up a roof is irrelevant. A roof is a roof.

(3) The correct law is as stated in this judgment. Any further findings of facts as to whether the prosecution have proved their case beyond reasonable doubt is a matter for the learned District Judge.

(4) The learned District Judge was not correct in making an award of costs against the Health Service Executive. This a prosecution brought in the public interest. In consequence, the principles as to the award of costs are those as stated in The People (D.P.P.) v. Kelly[2007] IEHC 450 (Unreported, High Court, Charleton J., 19 December, 2007). It might also be noticed that the level of costs awarded by the learned judge in this case was too high. This was a simple argument as to whether a prosecution could succeed on a charge carrying a monetary penalty of €3,000 or less. Any legal argument was centred on the definition of a roof. It would be very difficult for a judge in the District Court to justify costs exceeding €10,000 to a defendant succeeding in securing an acquittal on a minor charge and then succeeding in obtaining an award of costs. Even a figure of one tenth of that might be queried.

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Reference Info:n/a | Ireland

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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