Another question regarding age related products?

ohnonotgmail wrote: »

you make it sound like the HSE were out to entrap the shopkeeper.

Good man! Thought I'd lost you there for a minute. The tobacconist absolutely has been entrapped into committing this particular offence - the one that he is charged with.

This is a classic entrapment operation - identify somebody who you think might commit an offence if asked to do so; approach him (commonly, through an agent) and invite him to commit the offence.

If the entrapment issue is raised by the defence (as noted, Tesco didn't raise in the case we have been linked to) much may depend on whether:

- the state had particular reason to think that the defendant was committing or would routinely commit offences of this kind; or

- the defendant wound not commit offences of this kind, but for being induced to by the actions of the state.

So, if authorities send in an underage purchase because they've had reports that the tobacconist sells to kids, that's one thing. It may be another thing if the authorities are testing him at random, when they have no prior reason to think that he commits this offence.

One reason defendants may not raise the entrapment issue is because they don't want to ask the question in court "why was I picked for testing?"

Peregrinus wrote: »

Good man! Thought I'd lost you there for a minute.

no need to be so patronising.

Peregrinus wrote: »

The tobacconist absolutely has been entrapped into committing this particular offence - the one that he is charged with.

This is a classic entrapment operation - identify somebody who you think might commit an offence if asked to do so; approach him (commonly, through an agent) and invite him to commit the offence.

If the entrapment issue is raised by the defence (as noted, Tesco didn't raise in the case we have been linked to) much may depend on whether:

- the state had particular reason to think that the defendant was committing or would routinely commit offences of this kind; or

- the defendant wound not commit offences of this kind, but for being induced to by the actions of the state.

So, if authorities send in an underage purchase because they've had reports that the tobacconist sells to kids, that's one thing. It may be another thing if the authorities are testing him at random, when they have no prior reason to think that he commits this offence.

One reason defendants may not raise the entrapment issue is because they don't want to ask the question in court "why was I picked for testing?"

they don't raise the entrapment defence for fear of the judge dying from laughter. No barrister wants that on their conscience. Assuming they have one. And it isn't a defence at all. They are in court for their own actions, the actions of others do no not excuse their selling of tobacco to a minor. the actions of the HSE are not in question. There are genuine public policy reasons for performing these operations.

Peregrinus wrote: »

My apologies. I didn't intend to patronise; I meant it in a light-hearted way, but obviously that didn't come across. My bad.


Just because there are "genuine public policy reasons" for doing something doesn't mean that its legal to do it, though. There's a serious legal question about whether, and in what circumstances, evidence obtained through entrapment is admissible against the person entrapped. The offence with which the tobacconist is charged would not have been committed if the HSE has not set about getting it committed. Do you not see the problem here?

that particular instance of the offence may not have been committed but if they did it that time they have done it other times. they would have to be very unlucky to get caught the only time they did it. Hence the nod towards public policy.

The Continental Op wrote: »

I assume this is the case that relates to the High Court ruling iin my quote above

Underage girl used by health board to buy cigarettes

that is from 2006. That the HSE continue to do this suggests the court did not find in favour of the shopkeeper.

ohnonotgmail wrote: »

that particular instance of the offence may not have been committed but if they did it that time they have done it other times. they would have to be very unlucky to get caught the only time they did it. Hence the nod towards public policy.

AndrewJRenko wrote: »

Because no other under age teenager has ever tried to buy tobacco?

If you want to convict someone of selling different tobacco to different teenagers on different occasions, you need to charge them with those other sales and produce evidence of them. If they're only charged in relation to this one transaction, then they cannot be convicted on the basis that they must surely have committed other offences at other times. And if the evidence in relation to this transaction is tainted, then yhey can't be convicted of this transaction.

Ohnonotgmail linkes to an Irish Times report of a High Court judgment that says that this practice doesn't amount to the kind of entrapment that would taint the evidence, and so the evidence can be admitted and the conviction is good. Presumably it wasn't further appealed and, unless someone does take the issue to a higher court this precedent will stand.

Still, it doesn't look like a great precedent to me. On the one hand, the court defers a lot to the Office of Tobacco Control's protocol for this test purchases, but the OTC has no legislative powers and its protocol cannot make evidence admissible which is, by law, inadmissible. And, on the other hand, the court seems unbothered by the fact that in certain important respects the protocol wasn't followed. The OTC had no reason to target these premises, there was nothing to suggest a propensity to offend and they had no grounds for suspicion, so should the state be seeking to induce randomly-selected tobacconists to commit crimes when their own protocol contains procedures for establishing which tobacconists should be tested in this way?

In short, based on the newspaper report I'm not sure that the reasoning underpinning this ruling is all that crash-hot. I get the sense that maybe the court felt on pragmatic grounds that this practice should be allowed, and wasn't too concerned about squaring the circle between that feeling and the established legal principles that suggested that maybe it shouldn't.

But we are where we are. For reasons already discussed people who might be in a position to challenge this in a higher court may be motivated not to do so, so this precedent is likely to stand for some time.

Is not the problem the OTC protocol is not law yet the courts are relying on it for evidence?

I'm open to correction but afaik the underage person who did the test purchase doesn't appear in court and the court replies on the evidence of the OTC officer.

So if say the underage person did look over 18 the court is relying on the protocol to safeguard against that.

I think you're looking at this in a very black-and-white fashion, ohnonotgmail — that if a High Court judgment exists, it must be unassailable. But if that was the case we wouldn't need a Court of Appeal or a Supreme Court, would we?

There are a couple of pointers within the judgment itself. For example, while the OTC had issued a protocol which governed the test procedures, the court notes that there is nothing in the tobacco control legislation to support the protocol or the test procedures. So what we have here is a purely administrative practice which enjoys no presumption of legality. And the judgment cites the English case of Loosely, in which the House of Lords held that "The investigatory technique of providing an opportunity to commit a crime . . . should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason." Yet in these case the OTC were applying it wholesale and at random; it was conceded that they had no reason to think that this particular tobacconist was selling to underage customers.

Loosely suggests that a good reason might be where the offences involved are of their nature clandestine, and so require clandestine and intrusive investigatory techniques, but that's clearly not the case here; tobacco sales generally take place during business hours in shops open to the public, and anyone in the shop can witness them. If the tobacconist is regularly selling to underage customers, can we not expect complaints from members of the public who have seen this or heard of it?

From the IT report, Murphy seems to think that the fact that the participants in other illegal purchases are unlikely to report them, but that's pretty much always true of any crime; it hardly constitutes a "good reason" for departing from a general rule that leans against random testing. He completely overlooks the fact that the offences are generally committed in public, and there would be many other witnesses who could report them.

Obviously Murphy J either didn't find Loosely persuasive, or felt that in this instance there was sufficient "good reason" for the wholesale random approach, but who is to say that a higher court might not take a different view?

And there are constitutional issues in Ireland which don't arise in the UK. There's a constitutional privilege against self-incrimination, for example. Is the practice of the state clandestinely manoeuvring the defendant into creating evidence against himself entirely consistent with that?

I'm not saying that Murphy's judgment is necessarily, or even probably, wrong; just that it's not the last word on the subject and there are questions at issue that don't see to me to have been fully explored.

Peregrinus wrote: »

I'm pretty sure the prosecution would call them as a witness, to prove their age. Proving their age by third party evidence would be possible, but a bit of a palaver. And of course once the prosecution calls them the defendant can cross-examine.

So why is a parent going to allow their child to do unpaid work and then have the hassle of appearing as a witness in court?

Peregrinus wrote: »

I think you're looking at this in a very black-and-white fashion, ohnonotgmail — that if a High Court judgment exists, it must be unassailable. But if that was the case we wouldn't need a Court of Appeal or a Supreme Court, would we?

There are a couple of pointers within the judgment itself. For example, while the OTC had issued a protocol which governed the test procedures, the court notes that there is nothing in the tobacco control legislation to support the protocol or the test procedures. So what we have here is a purely administrative practice which enjoys no presumption of legality. And the judgment cites the English case of Loosely, in which the House of Lords held that "The investigatory technique of providing an opportunity to commit a crime . . . should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason." Yet in these case the OTC were applying it wholesale and at random; it was conceded that they had no reason to think that this particular tobacconist was selling to underage customers.

Loosely suggests that a good reason might be where the offences involved are of their nature clandestine, and so require clandestine and intrusive investigatory techniques, but that's clearly not the case here; tobacco sales generally take place during business hours in shops open to the public, and anyone in the shop can witness them. If the tobacconist is regularly selling to underage customers, can we not expect complaints from members of the public who have seen this or heard of it?

From the IT report, Murphy seems to think that the fact that the participants in other illegal purchases are unlikely to report them, but that's pretty much always true of any crime; it hardly constitutes a "good reason" for departing from a general rule that leans against random testing. He completely overlooks the fact that the offences are generally committed in public, and there would be many other witnesses who could report them.

Obviously Murphy J either didn't find Loosely persuasive, or felt that in this instance there was sufficient "good reason" for the wholesale random approach, but who is to say that a higher court might not take a different view?

And there are constitutional issues in Ireland which don't arise in the UK. There's a constitutional privilege against self-incrimination, for example. Is the practice of the state clandestinely manoeuvring the defendant into creating evidence against himself entirely consistent with that?

I'm not saying that Murphy's judgment is necessarily, or even probably, wrong; just that it's not the last word on the subject and there are questions at issue that don't see to me to have been fully explored.

while not the last word, is there ever a last word in the law, it is certainly the current and I think the alternative you favour is completely unpalatable. you would have a law against the selling of tobacco to minors that would be almost unenforceable.

Peregrinus wrote: »

Oh, I'm not saying that I favour the alternative. I'm just saying that, legally speaking, the current practice looks to me a little bit iffy. If I was the OTC I'd want a slightly sounder basis for what I'm doing, either in the form of a Supreme Court judgment or a statutory authority to do it (which would enjoy a presumption of constitutionality).

I'm sure they would but unless a defendant takes a case to the supreme court there will never be a supreme court judgement. Given the existing high court decision it would take a brave defendant with deep pockets to attempt that. For me the OTC are acting in the public good and I don't see a problem with how they are acting.

The Continental Op wrote: »

So why is a parent going to allow their child to do unpaid work and then have the hassle of appearing as a witness in court?

I know in one case, it was the teenage child of the relevant health board official (few years back) that did the test purchases.

GerardKeating wrote: »

For the HSE to be guilt of Entrapment, it would required some pressure or persuasion by them to get the retailer to do something they would not normally do.

Yes, the HSE sent an under aged person to purchase tobacco, but if different under aged person was there instead, would the retailer had sold the ciggies?

But you can't prosecute somebody for an offence that (you think) they would have committed; only for the offence that they actually did commit. And the offence that they actually did commit is an offence incited by the prosecutor itself. Which raises the question; can the state legitimately ask you to commit an offence, and then prosecute you for committing the offence that it asked you to commit - the offence that it itself is complicit in?