The use of minors by health boards in prosecutions for under-age cigarette sales may have to be reviewed after a District Court judge yesterday dismissed charges against a shop owner and shop assistant.
The charges had been brought by the North Western Health Board.
Judge Oliver McGuinness said in Ballymote District Court that the use of a 14-year-old girl by the health board to purchase cigarettes in the test case could be regarded as entrapment, although "I am not saying it is being regarded as entrapment".
The judge said he had some difficulties with the protocol governing the use of minors in such a case.
He dismissed the case against Ms Yolanda Hewitt, the owner of Gilmore's Gala Food Stores, Abbey Terrace, Ballymote, Co Sligo, on the basis that the legislation at no stage refers to the "proprietor" of an outlet.
He also dismissed a charge against Ms Olive McTiernan, a shop assistant, who sold the cigarettes to the girl because the defendant said she believed the customer was 18 and he had to give her the benefit of the doubt.
Both women were prosecuted for selling 10 Silk Cut Purple to a minor on July 14th, 2003, contrary to the Tobacco Health Promotion and Protection Act.
The health board said it was disappointed by the ruling and would discuss it with its lawyers before deciding whether to appeal.
Ms Ann Marie Part, deputy chairwoman of the Environmental Health Officers' Association, also expressed disappointment. However, she said: "I don't think it will deter health boards from proceeding with prosecutions.
"It is the first time a District Court judge has indicated unhappiness with the protocol, and because it is the District Court there is no question of setting a precedent."
Ms Part noted there were about 20 successful prosecutions a year in the State using the same methodology, which had been agreed between health boards and the Office of Tobacco Control (OTC). Under the protocol, teenagers used in prosecutions must be appropriately dressed for their age and give their correct age when asked. An OTC spokeswoman said: "The methods used in prosecutions are tried and tested methods and have been used over time and in a variety of jurisdictions."
In yesterday's case, defending solicitor Keenan Johnson said there was entrapment because the shop had no history of breaching the law.
Judge McGuinness said the protocol governing the recruitment of minors should be fair and have the interests of the minor at heart.
In this case, the volunteer who went in to buy the cigarettes, and her mother, were unaware that she might have to appear in court.
Judge McGuinness said he had a further difficulty with the protocol because in this case the prosecution was as a result of an on-the-spot check. There had never been a complaint about this premises and when a similar check had been carried out there in 2001 the shop had not sold the cigarettes.