The High Court has ruled that the circumstances of the alleged sale of a packet of cigarettes to a teenage girl did not constitute entrapment. The girl was acting at the time in a voluntary capacity for a health board official involved in spot checks to see if tobacco was being sold to underage minors.
Mr Justice Roderick Murphy yesterday gave judgment on a number of legal issues referred for determination to the High Court by a District Court judge dealing with the matter. The issues arose in a prosecution brought by Caitriona Syron, an officer of the North Western Health Board and operating on behalf of the Minister for Health under the Tobacco Act, against Yolanda Hewitt, the proprietor of Gilmore's Gala Foodstore, Abbey Terrace, Ballymote, Co Sligo, and Olive McTiernan, the person who allegedly sold cigarettes to the teenager in that shop.
Defence lawyers had argued, among other submissions, that the circumstances of the purchase constituted entrapment and that the evidence procured was inadmissible.
Yesterday, Mr Justice Murphy ruled that there was no substantive defence of entrapment arising out of the use of the test purchase procedure. He also found that the use of children in the test purchase scheme is not contrary to public policy and said this was necessary for the protection of children themselves, subject to the protocol published by the Office of Tobacco Control (OTC).
Mr Justice Murphy said the court accepts that public policy and the interests of the common good require that children are protected from the dangers of smoking and addiction to tobacco products.
It was clear the OTC protocol required parental consent and certain safeguards in the use of a child and these were applied in this case, he said.
After the case came before District Court Judge Oliver McGuinness at Ballymote District Court in January 2004, he referred a number of issues to the High Court, including whether the actions taken by the health board could be regarded as entrapment or whether the health board did no more than give the defendants the opportunity to break the law without inducing them to do so.
After hearing evidence in the case, the District Court judge said he was inclined to hold the proprietor was not vicariously liable in the matter, to dismiss the case against he and to give the benefit of the doubt to Ms McTiernan if the teenager could pass for 18 and if Ms McTiernan had acted in good faith. He adjourned the matter pending the High Court's decision on the legal issues raised.
The District Court was told that, in July 2003, a 14-year-old girl volunteer for the health board entered the shop in Ballymote, asked for and was sold a packet of cigarettes without being asked her age.
The girl, who was dressed in a T-shirt and tracksuit bottoms, was instructed to give her correct age if asked, the court was told. She denied she was wearing make-up.
It was accepted the shop had no history of selling tobacco products to underaged persons. It was also accepted that, when some 18 months previously a 12-year-old boy attempted to buy cigarettes, he was asked for proof of age at the shop and no sale took place.