Court to study use of minors in tobacco sale cases

A District Court judge has asked the High Court to consider whether the use of minors by the Health Service Executive to detect the illicit sale of tobacco to under-age customers constitutes entrapment.

District Justice Oliver McGuinness acquitted a shop owner and sales assistant who sold cigarettes to a 14-year-old girl in Ballymote District Court in Co Sligo on June 8th last.

The teenager was acting as a volunteer for the then North Western Health Board, which launched a prosecution following the sale.

It has been learned that Judge McGuinness has now referred the case to the High Court on the grounds that it raised several issues of public importance, and because of the lack of precedent in Irish law.

The judge has asked the High Court to consider 15 questions ranging from the issue of entrapment to costs, and whether the use of children in test purchases is contrary to public policy.

He also points out that several similar prosecutions are pending in his court and in other District Court areas.

The papers were lodged in the High Court this week. A hearing is not likely to proceed until the next legal term.

In the original case heard by Judge McGuinness last June, Ms Yolanda Hewitt, the owner of Gilmore's Gala Foodstore at Abbey Terrace, Ballymote, and sales assistant Ms Olive McTiernan were charged with selling 10 Silk Cut purple cigarettes to a minor on July 14th, 2003.

The prosection was brought under the Tobacco (Health Promotion and Protection) Act.

The court heard that on the day the girl visited the defendant's shop, 30 other shops were visited, leading to approximately 20 prosecutions.

It also emerged that the Health Board had sent a 12-year-old boy into the defendant's shop on a previous occasion to buy cigarettes but he was asked for proof of age and was not served.

The sales assistant had not asked the girl her age but insisted in evidence that the girl looked over 18 and said she was wearing make-up, something which was denied.

The owner of the shop said she had trained her staff and instructed them to seek identification and proof of age from any customer if they had a doubt. She also said that she had put up notices in the shop saying that tobacco would not be sold to under-age customers.

Judge McGuinness dismissed the case against the owner, having heard she was not present on the day and had trained her staff and put up notices. Having seen the volunteer in a photograph taken on the relevant day, he had to give the benefit of the doubt to the second defendant, who had the "reasonable belief" the girl was over 18.