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.

Another question regarding age related products?

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