The High Court ruled that entrapment is not a substantive defence in Irish law and that random test purchases can be used to enforce the ban on selling tobacco to people under 18. But where health authorities have drawn up a protocol requiring a list of target premises, they should proceed by reference to that list.
Mr Justice Roderick Murphy gave the ruling on 10 November 2006 in a case stated by Judge Oliver McGuinness of Sligo District Court. The case arose from the prosecution of Yolanda Hewitt and Olive McTiernan over an alleged sale of cigarettes to a 14-year-old volunteer in Ballymote on 14 July 2003. The High Court answered questions of law referred by the District Court; the judgment does not state the eventual outcome of the prosecutions.
The court heard that McTiernan was the shop proprietor and Hewitt an employee. The volunteer, accompanied by health board officers, bought a packet of 10 Silk Cut Purple cigarettes from Hewitt. The North Western Health Board had received no complaint about the premises and had no record of it selling tobacco to underage customers. A previous test purchase there, using a 12-year-old boy about 18 months earlier, had resulted in no sale after he was asked for proof of age.
The test-purchase protocol, published by the Office of Tobacco Control, was not statutory. It provided for parental consent and safeguards for child volunteers, and called for target premises to be selected using factors including prior test purchases, complaints, inspections and survey results. No target list had been generated for the operation in this case. The volunteer’s mother had initially deleted consent for her daughter to attend court, but later consented to her giving evidence.
The judge held that the absence of a prior complaint was not relevant to whether a random test purchase could be conducted. The protocol authorised the scheme and protected child volunteers, but the prosecutor should have generated a target list and proceeded by reference to it. The court also ruled that the mother’s later consent resolved the difficulty arising from the deleted part of the consent form.
The High Court said the offence was one of strict liability, with the proprietor vicariously liable for an employee’s act, subject to the statutory defence that the accused took all reasonable steps to establish the buyer was at least 18. Each defendant had to establish that defence on the balance of probabilities. Forming an opinion about the buyer’s age alone was insufficient: the seller had to take reasonable steps to check.
The court found no separate discretion to exclude evidence obtained through a test purchase beyond the ordinary rules of evidence. It also ruled that using children in such schemes was not contrary to public policy, subject to the protocol’s safeguards.