CONSTANCE CASSIDYasks whether the latest proposal from the Minister for Justice will meet its objectives
THIS CONTROVERSIAL legislative provision raises two questions: is it justifiable to use children to entrap licensees to commit a criminal act if the deception is for the protection of other children? And, perhaps more significantly, will it work, given the cumbersome guidelines?
The test purchasing provisions are contained in section 37C of the Intoxicating Liquor Act, 1988, and came into operation on October 1st.
The section provides that a member of the Garda Síochána may send a young person between the ages of 15 to 18 into any licensed premises for the purpose of purchasing intoxicating liquor.
Guidelines were issued by the Minister for Justice and Law Reform on the same day, and are very detailed as to the actual deception to be practised and the circumstances in which the young person can attempt the purchase of intoxicating liquor. As a preliminary, the parent or guardian of the youth must have given consent and the member of the Garda Síochána must be satisfied that all reasonable steps have been or will be taken to avoid harm to the youth's welfare - presumably to protect the young person should the deception be discovered on the premises by an angry till operator; and/or to allow the Garda Síochána to take custody of any alcohol obtained as a result of the deception.
As to the entrapment operation itself, the guidelines provide that two members of the Garda (not in uniform) must accompany the young person, one inside the premises and one outside the premises; and one of the two gardaí must be of the same sex as the test purchaser.
The young person is precluded from presenting a false identity card, or lying about his or her age. There is no financial reward for the youth, but reasonable expenses will be paid. The test purchaser cannot be alone in a non-public place with a garda.
Most, if not all, licensees request age identity from young people.
The deceiving youth will not be able to produce a false identity card. And will not be able to lie about his/her age. Additionally, the young person will be accompanied by an adult. Because of these factors, licensees are unlikely to fall into the trap, and the "sting" will probably fail.
One has to question whether the involvement of a young person in such an entrapment process is warranted and whether public funds might not more usefully be channelled towards educating our children to be better informed about alcohol and health issues.
One could also question the actual incentive for young people and their parents to become involved in the scheme, particularly where they face disapproval from their peers.
There is no other industry in the country so subject to regulation and legal and social scrutiny as the licensed trade. The system imposes extremely onerous obligations on each licensee, whether he be a supermarket owner, off-licence or petrol station operator, hotelier, restaurateur or publican. Most under-age offences attract an initial fine of €3,000 in respect of a first offence; and up to €5,000 for a second or subsequent offence.
After conviction the licensed premises must be closed for at least two and up to seven days, and for up to a month for a second and subsequent offence.
The intoxicating liquor licence is liable to forfeiture if two current convictions exist and a third is directed to be recorded on the licence. If this happens the premises can never again operate as a licensed premises.
The industry is also self-policing; on May 13th, 2009, an association of retailers known as Responsible Retailing of Alcohol in Ireland developed a voluntary code of practice concerning the display and sale of alcohol in supermarket premises. All the major retailers in the State, and most minor ones, are members of the association.
The code, compliance with which is subject to independent audit and verification every year, requires that members should not advertise alcohol products in windows, or at an internal location where it can be seen from outside the premises; must confine alcohol to a portion of the premises through which customers do not have to pass in order to gain access to other products; and must require production of a proof of age document where the customer appears to be under 21.
The implementation of this code has been notably successful and since its formation my experience has been that there have been significantly less under-age issues country wide.
Apart from the moral question as to whether a child or young person should be used to entrap a person to commit a criminal act, and the practical question of whether the entrapment process will actually work, an alternative suggestion is that the State's resources would be better directed in targeting the young offender actually involved in under-age offences and his/her parents, requiring all to participate in alcohol awareness education programmes.
This will have a more immediate and direct impact on young people and will require greater monitoring of actual substance abuse by parents.
Constance Cassidy is a senior counsel. She is author of Cassidy on the Licensing Acts, the third edition of which has just been published by Clarus Press, which will be launched by the Minister for Finance in the King's Inns Library on October 28th