Catriona Syon (prosecutor) v Yolanda Hewitt and Olive McTiernan (defendants) and the Office of Tobacco Control (amicus curiae)
Criminal law - Evidence - Defence - Entrapment - Agent provocateur - Whether defence of entrapment open to accused - Sale of tobacco products to minors - Tobacco (Health Promotion and Protection) Act 1988 (No. 24), section 3.
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.
The High Court so held, inter alia, in answering the questions posed for it by the District Court.
Eanna Mulloy SC and Simon Mills BL for the prosecutor; Esmonde Keane SC and Gerard Groarke BL for the defendants; Gerard Hogan SC and Maria Davin BL for amicus curiae.
Mr Justice Murphy said that the District Court stated a case to the High Court arising out of the prosecution of the defendants for offences contrary to section 3(1) of the Tobacco (Health Promotion and Protection) Act 1988, as amended.
It was alleged that on July 14th, 2003, the first defendant (the proprietor) and the second defendant (an employee) sold or offered to sell a packet of cigarettes to a minor volunteer of the prosecutor on a test purchase of tobacco products. The mother of the volunteer had filled out a consent form pursuant to a protocol for the test purchase of tobacco products issued by the North Western Health Board.
The District Court stated a case on the following points of law:
1. Is there a substantive defence of entrapment arising out of the use of the test purchase procedure available to the defendant?
2. If there is, had it been raised in the circumstances of the case?
3. In the instant case what was the significance of the non-statutory protocol established by the Office of Tobacco Control?
4. Was it relevant that the defendant had not been the subject of any prior complaint?
5. Was it relevant that the prosecutor had departed from the strict terms of the protocol in that no list of target premises had been generated as envisaged in paragraph 2 and there was no evidence that if such a list had been generated, the defendant's premises would have been put on it by reference to any of the criteria laid down?
6. Was it material that neither the child nor the mother envisaged when consenting to her involvement in the process that it would be necessary for her to attend court and that part of the consent form had been deleted?
7. Did the evidence of the mother to the effect that she was now consenting get over any difficulty created for the prosecution in that regard?
8. Is the offence created by s. 3(1) of the Act of 1988 one of strict liability for which the first defendant bore vicarious liability for the act of her employee?
9. If there is no defence of entrapment, what discretion did the court have to exclude evidence obtained by means of test purchase?
10. Is the use of children in the test purchase scheme contrary to public policy?
11. On whom is the onus of asserting the defence created by s. 3(3) of the Act of 1988 and what is the required standard of proof required?
12. Did the defence require some positive act on the part of the defendant or was it sufficient for her to have formed an opinion regarding the age of the child without taking any external step?
Section 3 of the Act of 1988, as amended, provides that: "(1) Any person who sells, offers to sell . . . any tobacco product to a person under the age of 18 years . . . shall be guilty of an offence . . . (3) whenever a person is prosecuted for an offence under this section, it shall be a defence for . . . her to establish that . . . she had taken all reasonable steps to assure . . . herself that the person to whom the tobacco products were sold, offered for sale . . . had attained the age of 18 years . . ."
A health board project team approved a protocol which was drawn up by the Office of Tobacco Control established under s. 9 of the Public Health (Tobacco) Act 2002. That Act gave prosecutorial powers to the amicus curiae and to the health boards to bring proceedings. The protocol provided that the primary concern for the environmental health officers involved in the "test purchase campaign" was the welfare of its volunteer minor who should be 14 to 16 years of age, be representative of their age group and be dressed appropriately to their age. They were not to be asked to take part in test purchases in their home area and were to be accompanied by two health board officers. If refused, they had to leave the premises. Other matters were also provided for in the protocol. The environmental health officer, in consultation with their principal, generates a list of target premises based on previous test purchases; complaints received; inspections; priority targeting; location of premises; and results of independent surveys. No legislation existed to support the protocol or the use of test purchase procedures.
The prosecutor recruited the services on a voluntary basis of a girl aged 14, having regard to the procedures created by the protocol. The mother completed a consent form but with the paragraph consenting to the appearance of the minor in a court proceedings arising out of the test purchase deleted. Subsequently the mother consented to the minor giving evidence. The prosecution acknowledged that the health board had not received any complaint about the premises.
Mr Justice Murphy said that the protocol as approved, while it had not the force of statute, was devised as part of the functions of the office of tobacco control pursuant to sections 10 and 11 of the Act of 2002. The issue common to the questions in the case stated was the degree to which the element of entrapment was relevant to a defence where the powers of the office of tobacco control were being exercised pursuant to a protocol. He referred to Dental Board v. O'Callaghan IR 181 where the High Court held that the undercover actions of an inspector in obtaining evidence did not require a corroboration warning. R. v. Latif 1 WLR 104 was also cited, which held that entrapment was not a defence under English law. He then cited Lord Nicholls in Loosely: AG's reference no. 3 of 2000 UKHL 53, 1 WLR 2060 dealing with the defence of entrapment: "a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime . . . the investigatory technique of providing an opportunity to commit a crime . . . should not be applied in a random fashion and used . . . without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this proportionality has a role to play." The undercover operation's code of practice issued by the United Kingdom police authorities and HM Customs and Excise which laid down procedures and guidelines for the carrying out of test purchases was also referred to and it was noted by Mr Justice Murphy that, under it, the authorising officer had to be satisfied that the desired result of the test purchase could not reasonably be achieved by other means.
Mr Justice Murphy said that the use of the test purchaser had been authorised by the health board pursuant to its protocol. However, the evidence was that there were no grounds to suspect that criminal offences had been committed prior to the test purchase even though the protocol provided a basis by which reasonable grounds for suspicion could be established.
The defendants submitted that, even if the prosecutor was relying on the protocol to justify test purchases, they had to comply with the safeguards contained therein and with regard to target premises, propensity to offend and grounds for suspicion were therefore relevant factors in the absence of which a test purchase would not accord with the provisions of article 6(1) of the European Convention on Human Rights as interpreted in Teixeire de Castro v. Portugal 28 EHRR 101 (1998). Moreover, the defendants argued that the use of an agent provocateur who appeared older than 14 was the type of conduct disapproved of by the courts.
It seemed to Mr Justice Murphy that the best practice of listing target premises was by way of random testing prior to prosecution. The court accepted that public policy and the interests of the common good required that children were protected from the dangers of smoking and addiction to tobacco. It also accepted that it was unlikely that those involved in consensual crime would report the matter to the authorities. It was, accordingly, difficult to ascertain outlets that were acting contrary to the legislation. In that context, it was the function of the office of tobacco control to carry out random test purchases and to commission independent surveys so as to generate a list of target premises.
In the circumstances, Mr Justice Murphy answered the questions posed as follows:
1. There is no substantive defence of entrapment arising out of the use of the test purchase procedure available to the defendant in Irish law.
2. It had not been raised in the circumstances of the case.
3. The protocol ensured that the test purchase scheme was authorised and protected the use of children by requiring parental control together with the safeguards included therein. However, the prosecutor, having provided for the generation of a list of target premises as provided for in paragraph 2 of the protocol, should proceed by reference thereto.
4. It was not relevant that the defendant had not been subject to any prior complaint given that the practice of random test purchases was permissible and necessary in such cases.
5. It was relevant that the prosecutor had departed from the strict terms of the protocol in that no list of target premises had been generated as envisaged in paragraph 2 as the programme of inspection provided for in section 10 of the Act of 1988 should have regard to the list of targeted premises.
6. It was material that neither the child nor her mother envisaged that it would be necessary for her to attend court and that part of the consent form had been deleted.
7.The evidence of the mother that she was consenting got over the difficulty created for the prosecution in that regard.
8. The offence created by section 3(1) of the Act of 1988, as amended, was one of strict liability for which the first defendant bore vicarious liability for the act of her employee, subject to the defence in section 3(3) of an accused taking reasonable steps to assure that the buyer had attained the requisite age.
9. As there was no defence of entrapment, the court had no discretion to exclude evidence obtained by means of test purchase other than the application of the rules of evidence.
10. The use of children in the test purchase scheme is not contrary to public policy. 11. The onus of asserting the defence created by section 3(3) of the Act of 1998 was on each of the defendants on the balance of probabilities.
12. The defence created by section 3(3) of the Act of 1998 required more than the forming of an opinion regarding the age of the child. The defendant has to take all reasonable steps to ensure herself that the person to whom the tobacco was sold had attained the age of 18 years.
Solicitors: Hegarty & Armstrong (Sligo) for the prosecutor; Johnson & Johnson (Ballymote) for the defendants; McKeever Rowan (Dublin) for the amicus curiae.
Paul Christopher barrister