Another question regarding age related products?

freshpopcorn · 13-05-2021 12:45am #1

This is something I remember from a college class but can't remember the exact details of it.
Regarding the sale of alcohol, tobacco, e-cigarette, lottery, etc.

If the HSE, a media outlet, etc are carrying out surveys to see would under 18's be served.

If the sales assistant asks the person doing the survey ''Are you over 18?''

Can the person lie?

Peregrinus · 13-05-2021 3:30am

What would stop them lying?

Victor · 13-05-2021 4:54am

Peregrinus wrote: »

What would stop them lying?

Well, they are acting as agents of the state, potentially in a prosecution scenario. The line between legitimate enquiry and entrapment is narrow.

Peregrinus · 13-05-2021 5:05am

I'm a bit confused. What lie is being told, and by whom?

Victor · 13-05-2021 6:57am

The HSE arranges for under-age teenagers to make sample purchases of tobacco and related products.

An adult supervisor enters the shop, to act as witness. While they feign interest in which newspaper to buy, the teenager enters the shop and asks "Can I get 20 Brand X cigarettes?" to the shop assistant. The shop assistant is meant to challenge young people on their age and seek appropriate ID. Sometimes they don't do this. Sometimes they will ask a question like "What age are you?".

The OP's question is, can the under-age teenager say the are 18 (or more) and the HSE successfully prosecute the shop operator for supplying tobacco to an under-age person?

Peregrinus · 13-05-2021 7:17am

Victor wrote: »

The HSE arranges for under-age teenagers to make sample purchases of tobacco and related products.

An adult supervisor enters the shop, to act as witness. While they feign interest in which newspaper to buy, the teenager enters the shop and asks "Can I get 20 Brand X cigarettes?" to the shop assistant. The shop assistant is meant to challenge young people on their age and seek appropriate ID. Sometimes they don't do this. Sometimes they will ask a question like "What age are you?".

The OP's question is, can the under-age teenager say the are 18 (or more) and the HSE successfully prosecute the shop operator for supplying tobacco to an under-age person?

Regardless of whether a lie is told, presumably if the prospective purchaser is in fact under age, they don't follow through and complete the purchase? Because, if they do, are not they and the HSE both accessories to the offence that is being committed? And I can't see a successful prosecution where the prosecuting authority is, by its own admission, an accessory to the offence being prosecuted. Plus, the chief prosecution witness is also an accomplice; there are rules about convicting on the evidence of an accomplice.

Entrapment exercises like this might have some value in identifying shops that are willing to break the law, and could form a basis for offering, um, fraternal correction to the shopkeeper and letting him know that he has been fingered and encouraging him to consider a rapid and complete policy u-turn. But I think they'd be a very dodgy basis for a prosecution, no?

rock22 · 13-05-2021 7:35am

Peregrinus wrote: »

Regardless of whether a lie is told, presumably if the prospective purchaser is in fact under age, they don't follow through and complete the purchase? Because, if they do, are not they and the HSE both accessories to the offence that is being committed? And I can't see a successful prosecution where the prosecuting authority is, by its own admission, an accessory to the offence being prosecuted. Plus, the chief prosecution witness is also an accomplice; there are rules about convicting on the evidence of an accomplice.

Entrapment exercises like this might have some value in identifying shops that are willing to break the law, and could form a basis for offering, um, fraternal correction to the shopkeeper and letting him know that he has been fingered and encouraging him to consider a rapid and complete policy u-turn. But I think they'd be a very dodgy basis for a prosecution, no?

I think there has been many successful prosecutions by HSE using a minor volunteer. For example
The seller has to 'satisfy themselves' that the customer is over 18. If the volunteer minor lied and said they were over eighteen than that might be a defence. It would also be a criminal offence by the minor as it is an offence to pretend to be over 18 to purchase alcohol and tobacco, so i imagine the minor volunteers do not 'lie'.
It could be argued that the seller did not ask for proof of age but i am not too sure there is any requirement to do so.

mondeoman72 · 13-05-2021 7:38am

Real case.

Young lad - "20 Blue please"
Shop - "sure, no problem, got your ID?"
Young lad - "no, sorry."
Shop - "Feck off" LOL
Next customer - flashes her ID badge, "you have just been checked."

Commence conversation about the law.

Peregrinus · 13-05-2021 7:45am

mondeoman72 wrote: »

Real case.

Young lad - "20 Blue please"
Shop - "sure, no problem, got your ID?"
Young lad - "no, sorry."
Shop - "Feck off" LOL
Next customer - flashes her ID badge, "you have just been checked."

Commence conversation about the law.

It'll be a short conversation. No cigarettes were sold. No offence was committed. There'll be no prosecution.

Victor · 13-05-2021 8:56am

Peregrinus wrote: »

Regardless of whether a lie is told, presumably if the prospective purchaser is in fact under age, they don't follow through and complete the purchase? Because, if they do, are not they and the HSE both accessories to the offence that is being committed? And I can't see a successful prosecution where the prosecuting authority is, by its own admission, an accessory to the offence being prosecuted. Plus, the chief prosecution witness is also an accomplice; there are rules about convicting on the evidence of an accomplice.

Entrapment exercises like this might have some value in identifying shops that are willing to break the law, and could form a basis for offering, um, fraternal correction to the shopkeeper and letting him know that he has been fingered and encouraging him to consider a rapid and complete policy u-turn. But I think they'd be a very dodgy basis for a prosecution, no?

The HSE have said that they realise there is a fine line, but that this is the only realistic way they can proceed, short of shops and teenagers admitting offences and self-incriminating. Realistically, we know this isn't going to happen. Hence me phrasing it as "Can I get 20 Brand X cigarettes?"

I suspect the offence is for supplying, not buying.

ohnonotgmail · 13-05-2021 9:26am

Peregrinus wrote: »

Regardless of whether a lie is told, presumably if the prospective purchaser is in fact under age, they don't follow through and complete the purchase? Because, if they do, are not they and the HSE both accessories to the offence that is being committed? And I can't see a successful prosecution where the prosecuting authority is, by its own admission, an accessory to the offence being prosecuted. Plus, the chief prosecution witness is also an accomplice; there are rules about convicting on the evidence of an accomplice.

Entrapment exercises like this might have some value in identifying shops that are willing to break the law, and could form a basis for offering, um, fraternal correction to the shopkeeper and letting him know that he has been fingered and encouraging him to consider a rapid and complete policy u-turn. But I think they'd be a very dodgy basis for a prosecution, no?

there is no offence of buying tobacco while underage. The retailer is supposed to satisfy themselves that the person buying is over age. Simply taking the persons word for that without asking for ID puts them in dubious territory at best.

Peregrinus · 13-05-2021 9:53am

Victor wrote: »

The HSE have said that they realise there is a fine line, but that this is the only realistic way they can proceed, short of shops and teenagers admitting offences and self-incriminating. Realistically, we know this isn't going to happen. Hence me phrasing it as "Can I get 20 Brand X cigarettes?"

I suspect the offence is for supplying, not buying.

The offence is supplying, but the, um, willing recipient in the supply transaction, as well as the authority figure who set the whole thing up, would be guilty of aiding, abetting, counselling or procuring the supply offence.

I take the HSE's point that this is a difficult area, and rock22's cite shows that the HSE does mount prosecutions in relation to supplies that it has aided/abetted etc. It strikes me that the likes of Tesco are unlikely to defend their position by raising the aiding and abetting objection; they might succeed in their defence but the reputational damage would be considerable, plus they might provoke the enactment of more draconian enforcement legislation, so they are probably better off pleading, and mitigating by saying "it's not our policy to do this; we have systems in place to stop it; but they sometimes fail; and when they do it's a fair cop".

ohnonotgmail · 13-05-2021 9:59am

Peregrinus wrote: »

The offence is supplying, but the, um, willing recipient in the supply transaction, as well as the authority figure who set the whole thing up, would be guilty of aiding, abetting, counselling or procuring the supply offence.

I take the HSE's point that this is a difficult area, and rock22's cite shows that the HSE does mount prosecutions in relation to supplies that it has aided/abetted etc. It strikes me that the likes of Tesco are unlikely to defend their position by raising the aiding and abetting objection; they might succeed in their defence but the reputational damage would be considerable, plus they might provoke the enactment of more draconian enforcement legislation, so they are probably better off pleading, and mitigating by saying "it's not our policy to do this; we have systems in place to stop it; but they sometimes fail; and when they do it's a fair cop".

I dont see how this applies. Let me illustrate by way of example. A person is caught in the act of purchasing cannabis. naturally they are charged with possession of cannabis. the person who sold it is charged with the sale or supply of cannabis. the person who bought it is not charged with aiding or abetting the supply charge. if what you say is true why would the gardai not charge purchasers with the more serious offence rather than just simple possession?

Peregrinus · 13-05-2021 10:08am

ohnonotgmail wrote: »

I dont see how this applies. Let me illustrate by way of example. A person is caught in the act of purchasing cannabis. naturally they are charged with possession of cannabis. the person who sold it is charged with the sale or supply of cannabis. the person who bought it is not charged with aiding or abetting the supply charge. if what you say is true why would the gardai not charge purchasers with the more serious offence rather than just simple possession?

Because it's policy not to — you can see the policy argument for not punishing personal consumers with the same severity as "pushers". But they quite obviously are aiding and abetting the supply transaction - it literally couldn't happen without their co-operation and participation.

But I think it introduces a whole additional complication when the consumer who could be charged with aiding and abetting is also the prosecutor. I think that's a point that Tesco, etc, could raise, if they didn't think they were better off not to.

ohnonotgmail · 13-05-2021 10:14am

Peregrinus wrote: »

Because it's policy not to — you can see the policy argument for not punishing personal consumers with the same severity as "pushers". But they quite obviously are aiding and abetting the supply transaction - it literally couldn't happen without their co-operation and participation.

But I think it introduces a whole additional complication when the consumer who could be charged with aiding and abetting is also the prosecutor. I think that's a point that Tesco, etc, could raise, if they didn't think they were better off not to.

can you confirm what definition of aiding and abetting you are using? the one i am familiar with is from here

http://www.irishstatutebook.ie/eli/1997/act/14/section/7/enacted/en/html

(2) Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence.

I dont see how the purchaser of the tobacco or the HSE can be said to act with intent to impede apprehension or prosecution. quite the opposite I would have thought. Is there another definition somewhere else on the statute book?

Peregrinus · 13-05-2021 10:19am

ohnonotgmail wrote: »

can you confirm what definition of aiding and abetting you are using? the one i am familiar with is from here

http://www.irishstatutebook.ie/eli/1997/act/14/section/7/enacted/en/html

I dont see how the purchaser of the tobacco or the HSE can be said to act with intent to impede apprehension or prosecution. quite the opposite I would have thought. Is there another definition somewhere else on the statute book?

You're overlooking sub (1) of the same section:

"(1) Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender."

That only applies to indictable offences, of course, but I think it's a statutory restatement of a common-law principle that applies to any crime.

On edit: I recall that there is a view, and I think judicial authority, to the effect that you can't be guilty as an accessory to an offence if you are a member of a class of persons that the offence is supposed to protect. So a young person having consensual, even enthusiastic, sex with an adult is not guilty of aiding and abetting the offence the adult is committing. Applying that thinking here, the 17-year old who buys tobaccco is not guilty as an accessory to the tobacconist's offence of supplying tobacco to a person under 18. But that wouldn't affect the question of whether the HSE who put the 17-year old up to it is guilty for counselling, procuring, etc the offence.

rock22 · 13-05-2021 10:22am

ohnonotgmail wrote: »

can you confirm what definition of aiding and abetting you are using? the one i am familiar with is from here

http://www.irishstatutebook.ie/eli/1997/act/14/section/7/enacted/en/html

I dont see how the purchaser of the tobacco or the HSE can be said to act with intent to impede apprehension or prosecution. quite the opposite I would have thought. Is there another definition somewhere else on the statute book?

However, it does seem to be an alcohol if you are under 18 . Perhaps not for tobacco

Victor · 13-05-2021 10:37am

Peregrinus wrote: »

Because it's policy not to — you can see the policy argument for not punishing personal consumers with the same severity as "pushers". But they quite obviously are aiding and abetting the supply transaction - it literally couldn't happen without their co-operation and participation.

Garda at rave: Have you got any of those Mitsubishis*?
Dealer: No, but I have these for a tenner.
Garda: You're nicked**.

Are you saying this is entrapment?

* MDMA
** May not use this actual phrase.

ohnonotgmail · 13-05-2021 10:38am

Peregrinus wrote: »

You're overlooking sub (1) of the same section:

"(1) Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender."

That only applies to indictable offences, of course, but I think it's a statutory restatement of a common-law principle that applies to any crime.

On edit: I recall that there is a view, and I think judicial authority, to the effect that you can't be guilty as an accessory to an offence if you are a member of a class of persons that the offence is supposed to protect. So a young person having consensual, even enthusiastic, sex with an adult is not guilty of aiding and abetting the offence the adult is committing. Applying that thinking here, the 17-year old who buys tobaccco is not guilty as an accessory to the tobacconist's offence of supplying tobacco to a person under 18. But that wouldn't affect the question of whether the HSE who put the 17-year old up to it is guilty for counselling, procuring, etc the offence.

but who has the HSE counselled or procured? they haven't procured the shopkeeper. they have no contact with the shopkeeper. they have counselled or procured the minor making the purchase but as you say yourself the minor has not committed any offence.

ohnonotgmail · 13-05-2021 10:39am

rock22 wrote: »

However, it does seem to be an alcohol if you are under 18 . Perhaps not for tobacco

sorry, providing a link to a page without specifying what exactly you are referring to is not something i will ever respond to. besides, your sentence doesn't even make sense.

freshpopcorn · 13-05-2021 10:42am

Thanks for the replies.
I seem to have opened a can of worms!

Peregrinus · 13-05-2021 10:45am

Victor wrote: »

Garda at rave: Have you got any of those Mitsubishis*?
Dealer: No, but I have these for a tenner.
Garda: You're nicked**.

Are you saying this is entrapment?

It may or may not be entrapment. That's a different question from whether the guard is an accessory to the supply offence.

(Although in this scenario, the supply offence hasn't been committed. Yer man will be arrested, searched, found in possession of a quantity of these-for-a-tenners greater than can be accounted for by personal consumption and charged with possession with intent to supply, to which the guard is not an accessory.)

Peregrinus · 13-05-2021 10:46am

ohnonotgmail wrote: »

but who has the HSE counselled or procured? they haven't procured the shopkeeper. they have no contact with the shopkeeper. they have counselled or procured the minor making the purchase but as you say yourself the minor has not committed any offence.

You don't procure a person; you procure the commission of an offence. They have procured the tobacconist to commit the supply offence by sending in an agent to ask him to supply tobacco, without which very intentional action no offence would have been committed.

ohnonotgmail · 13-05-2021 10:51am

Peregrinus wrote: »

You don't procure a person; you procure the commission of an offence. They have procured the tobacconist to commit the supply offence by sending in an agent to ask him to supply tobacco, without which very intentional action no offence would have been committed.

if we are going by the ordinary legal definition then you do procure a person.

persuade or cause (someone) to do something

Peregrinus · 14-05-2021 1:55am

Well, section 7, which you quoted yourself, does talk about procuring the commission of the offence.

But we needn't split hairs. A can certainly procure the commission of an offence by B, or can procure B to commit an offence, whichever formulation you prefer, without ever speaking directly to B. If a Mafia boss decides that ohnonotgmail must die and he tells me, his trusty henchman, to find a hitman who will do the job, which I do, wouldn't you agree that the Mafia boss has procured your murder?

Similarly if the HSE tells a teenager to go in to the tobacconists and seek to buy cigarettes, and the tobacconist duly sells the cigarettes, the HSE has procured the supply offence. They didn't directly ask the tobacconist to supply; they got an agent to do it for them. But so what?

Victor · 14-05-2021 4:06am

Peregrinus wrote: »

Similarly if the HSE tells a teenager to go in to the tobacconists and seek to buy cigarettes, and the tobacconist duly sells the cigarettes, the HSE has procured the supply offence.

Question: Does it matter that supply simpliciter is not an offence?

Peregrinus · 14-05-2021 4:09am

No. This supply is an offence — that's why it's being prosecuted — and this is the supply which the HSE procured.

ohnonotgmail · 14-05-2021 9:29am

Peregrinus wrote: »

Well, section 7, which you quoted yourself, does talk about procuring the commission of the offence.

But we needn't split hairs. A can certainly procure the commission of an offence by B, or can procure B to commit an offence, whichever formulation you prefer, without ever speaking directly to B. If a Mafia boss decides that ohnonotgmail must die and he tells me, his trusty henchman, to find a hitman who will do the job, which I do, wouldn't you agree that the Mafia boss has procured your murder?

Similarly if the HSE tells a teenager to go in to the tobacconists and seek to buy cigarettes, and the tobacconist duly sells the cigarettes, the HSE has procured the supply offence. They didn't directly ask the tobacconist to supply; they got an agent to do it for them. But so what?

the fact that what the minor did is not an offence. the HSE persuaded the minor to act in the way they did. they had no hand in what the shopkeeper did. I don't think the HSE has any influence on the actions of the shopkeeper.

Peregrinus · 14-05-2021 9:44am

ohnonotgmail wrote: »

the fact that what the minor did is not an offence. the HSE persuaded the minor to act in the way they did. they had no hand in what the shopkeeper did. I don't think the HSE has any influence on the actions of the shopkeeper.

You're suggesting that the shopkeeper's decision to give tobacco to the teenager was uninfluenced by the fact that the teenager asked for tobacco? Sorry, but that's absurd. This offence was committed because the HSE intentionally set about getting the tobacconist to commit it. But for the actions of the HSE, the supply to the teenager would never have happened.

ohnonotgmail · 14-05-2021 9:57am

Peregrinus wrote: »

You're suggesting that the shopkeeper's decision to give tobacco to the teenager was uninfluenced by the fact that the teenager asked for tobacco? Sorry, but that's absurd. This offence was committed because the HSE intentionally set about getting the tobacconist to commit it. But for the actions of the HSE, the supply to the teenager would never have happened.

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

The Continental Op · 14-05-2021 10:06am

My son used to do this work in the UK (there its mainly done by Trading Standards) so this thread peaked my interest.

Anyway a bit of googling found this which may sort out some questions? https://www.hse.ie/eng/services/publications/environmentalhealth/role-of-the-retailer-in-tobacco-control.pdf

TEST PURCHASING
Test purchasing involves a supervised volunteer
minor, typically aged 14-17, who attempts to
purchase cigarettes.
In 2006 the High Court upheld the use of test
purchases by EHOs, and that evidence obtained
during test purchases is admissible in court.
EHOs involved with test purchasing ensure the
minor involved in the purchase can do so safely
and that they have the consent of their parents or
guardian.
Test purchasing is one of the most effective ways
of enforcing the law with respect to the sale of
tobacco to minors and that the use of children in
test purchasing is not contrary to public policy.
Test purchasing is an important means of
protecting children from the dangers of smoking
and addiction to tobacco products.

Peregrinus · 14-05-2021 10:11am

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?"

The Continental Op · 14-05-2021 10:21am

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

ohnonotgmail · 14-05-2021 10:27am

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 · 14-05-2021 10:42am

ohnonotgmail wrote: »

no need to be so patronising.

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.

ohnonotgmail wrote: »

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.

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?

ohnonotgmail · 14-05-2021 10:46am

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.

AndrewJRenko · 14-05-2021 11:08am

Peregrinus wrote: »

You're suggesting that the shopkeeper's decision to give tobacco to the teenager was uninfluenced by the fact that the teenager asked for tobacco? Sorry, but that's absurd. This offence was committed because the HSE intentionally set about getting the tobacconist to commit it. But for the actions of the HSE, the supply to the teenager would never have happened.

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

ohnonotgmail · 14-05-2021 11:13am

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 · 14-05-2021 11:54am

Just to wrap up one strand of this discussion

https://www.irishtimes.com/news/no-substantive-defence-of-entrapment-where-a-person-under-16-is-used-to-make-test-purchase-of-tobacco-1.1193545

The High Court (before Mr Justice Murphy); delivered November 10th, 2006.

The offence of selling tobacco to a person under 16 years created by section 3(1) of the 1988 Act, as amended, is one of strict liability for which a proprietor/employer bears vicarious liability for the act of her employee, subject to the defence in section 3(3) thereof of an accused taking reasonable steps to assure that the buyer has attained the requisite age.

There is no substantive defence of entrapment arising out of the use of the test purchase of tobacco by minors. Neither is it relevant that the defendant has not been subject to any prior complaint given that the practice of random test purchases is permissible and necessary in such cases. The prosecutor, having provided for the generation of a list of target premises as provided for in its protocol, should proceed by reference thereto. Public policy and the interests of the common good required that children were protected from the dangers of smoking and addiction to tobacco.

Peregrinus · 17-05-2021 3:53am

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.

ohnonotgmail · 17-05-2021 9:14am

Peregrinus wrote: »

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.

by law the evidence is admissible. that is what the judgement says. the evidence is not tainted so by what standard is it inadmissible? feel free to refer to any judgements that support what you say.

The Continental Op · 17-05-2021 9:22am

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.

ohnonotgmail · 17-05-2021 9:32am

The Continental Op wrote: »

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.

the defendant is free to call the underage person as a witness.

Peregrinus · 17-05-2021 9:51am

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 · 17-05-2021 9:54am

ohnonotgmail wrote: »

the defendant is free to call the underage person as a witness.

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.

The Continental Op · 17-05-2021 9:58am

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 · 17-05-2021 10:02am

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?

Because they regard the sale of tobacco to underage purchasers as a problem that needs to be addressed, and they are inclined to co-operate in addressing it?

From a legal discussion point of view, it doesn't matter why parents agree to this. It's enough to note that some clearly do agree, since random tests using teenage volunteers are in fact carried out.

ohnonotgmail · 17-05-2021 10:02am

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 · 17-05-2021 10:33am

ohnonotgmail wrote: »

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.

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).

ohnonotgmail · 17-05-2021 10:37am

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.

Peregrinus · 18-05-2021 2:02am

Oh, sure. There may be sound public policy reasons for thinking that this practice is a good idea. But that doesn't make the legal issues go away.

And, of course, the legal issues have a wider relevance. If the government can intentionally clandestinely set you up to commit a criminal offence and then prosecute you for the offence they procured, can they do this for offences other than the sale of tobacco to underage purchasers? What offences? Can they generally do this? Are there offences for which they can't do this? What are the principles that apply to determine when they can and when they can't? What if a third party is directly or indirectly injured by an offence which the government has procured? Does he have any remedy against the government for procuring the offence?

Another question regarding age related products?

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