Friday, 13 May 2011

Is Ireland's alcohol legislation now in tatters? Barmen manslaughter trial verdict

Yesterday’s (May 12th 2011) not guilty verdict in the manslaughter case of the two barmen who served lethal amounts of alcohol to a hotel guest raises more questions than it answers. Legislation in place to protect the public from being served potentially lethal doses of alcohol have neatly been sidestepped by Judge Tom Teehan who, in directing the jury that any conviction would be ‘unsafe’, said that while ‘duty of care had been breached’ and the defendants had shown ‘gross negligence’ by serving a ten-shot super-cocktail to an already heavily intoxicated man, the victim’s decision to drink the lethal cocktail once it had been served " was a supervening event to break the chain of causation.". 

Hayes Hotel Thurles

This will surely undermine any notion of duty of care where alcohol is concerned – and raises the obvious question why in Ireland, the home of unsafe drinking, should a judge want to direct a jury away from a guilty verdict?  As the Irish Times editorial says: “Other countries have well-developed liquor liability legislation (that) makes establishments and individuals selling alcohol liable for injuries caused to their customers or to third parties”.  And as recently reported in the Examiner, Australia frequently prosecutes both publicans who serve and customers who drink alcohol to excess in public. 

So why not here in Ireland? 

The Irish Times explains:
The outcome (of the trial) has identified serious gaps in our alcohol-related laws and highlighted a reluctance by successive governments to address them. Any challenge to the drinks industry in this country has been half-hearted, despite the damage caused to society by excessive consumption of alcohol.  Eight years ago, as a result of a rise in late-night public disorder, publicans who served alcohol to intoxicated persons or who permitted drunkenness on their premises could, for the first time, be fined heavily or have their premises closed. It wasn’t enough. In 2008, new laws were passed to protect “the health of individuals and society at large”. Those provisions were aimed mainly at alcohol sales outlets and at under-age drinking. Gardaí were given the power to seize alcohol being consumed in public by young people but, following intense lobbying by supermarkets, physical restrictions affecting licensed premises were not applied.

Liquor liability issues arose last year when Dermot Ahern, then minister for justice, proposed a code of practice for the sale of alcohol. Regulations were put forward to reduce the risk of public disorder and to address health risks arising from the excessive consumption of alcohol. But the Bill never made it past the second stage in the Dáil and it lapsed with the outgoing government.
So have the alcohol lobby won again?  The notion of personal responsibility is of course critical, and when a person who has been drinking decides to drive he or she is (except the farmer with a few pints according to coroner Dr. John Madden) responsible for any damage or injury they subsequently cause.  But the equal and obvious personal responsibility of those who continue to serve alcohol to a drunk person is also critical, as the judge should have been aware.  Moreover the alcohol producer, the drinker, the barman, the manager and the proprietor all have responsibility of one kind or another when dealing with an intoxicating substance known to be dangerous.  Even if we accept the barman's defence that he had never been trained in the selling of spirits, that surely puts the duty of care onto hoteliers and publicans to train staff properly.  Many American states offer such training, including knowledge of the dangers of alcohol and how to respond to situations of this kind, and report reduced alcohol related crime and harm as a result.  Fiona Ryan of Alcohol Action Ireland makes the case for similar training here.

More to the point, this case would have had far reaching effects if the men were convicted, essentially warning all bars and hotels across the country that they must at last adhere to legislation and not serve excessive amounts of alcohol to anyone who has already been drinking too much.  It would, in other words, have gone a long way to reverse the appalling trend of bingeing and boozing that has been blighting the country over the past decade.  Instead the message is that the legislation is unenforceable, and it is business as usual for publicans whose trade makes 80% of its profits from the 20% of its customers who are alcoholics.

The last word goes to the Irish Examiner, which has fast shed its new found mantle as the guardian of the nation’s sobriety, and editorialises today that “Judge Tom Teehan hit the nail on the head in directing the jury to find both men not guilty because of the high level of personal responsibility relating to drink… The tragic events of this case further highlight the dangers of the harmful effects of alcohol misuse and the urgent need for self-education about the benefits of responsible and sensible drinking”.  This is absurd.  When a sober person serves an eight-shot drink to someone they know has been drinking for four hours already, which of them is capable of exercising personal responsibility at that point?  Exactly the point the legislation exists to address. 

Vintners who might, as TD Robert Dowds wrote, have thought hard about advertising in the paper will now see that their interests are still in safe hands.   Will publicans be trembling at the editors warning that the verdict “should not lead to complacency in the licensed trade towards excessive drinking”?  Excessive complacency no, but unless the civil case now being pursued by the victim’s family succeeds, mild complacency seems in order. As you were.

No comments:

Post a Comment