Synon and Others v Hewitt and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 10 November 2006 |
| Neutral Citation | [2006] IEHC 376 |
| Date | 10 November 2006 |
| Court | High Court |
| Docket Number | [2005 No. 198 SS] |
[2006] IEHC 376
THE HIGH COURT
AND
AND
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52
TOBACCO (HEALTH PROMOTION & PROTECTION) ACT 1988 S8
TOBACCO (HEALTH PROMOTION & PROTECTION) ACT 1988 S3(1)
HEALTH (MISCELLANEOUS PROVISIONS) ACT 2001 S2
PUBLIC HEALTH (TOBACCO) ACT 2002 S45(3)
PUBLIC HEALTH (TOBACCO) ACT 2002 S9
EXCISE LICENCES ACT 1825
TOBACCO ACT 1840 S18
TOBACCO ACT 1842 S95
TOBACCO ACT 1863 S7
FINANCE (EXCISE DUTY ON TOBACCO PRODUCTS) ACT 1977
DENTAL BOARD v O'CALLAGHAN 1969 IR 181
R v LATIF: R v SHAZARD 1996 1 WLR 104
SHERMAN v UNITED STATES 1958 356 US 369
R v LOOSELY : AG'S REF NO 3 OF 2000 2001 UKHL 53 2001 1 WLR 2060
POLICE & CRIMINAL EVIDENCE ACT 1984 S76 (UK)
POLICE & CRIMINAL EVIDENCE ACT 1984 S78(UK)
NOTTINGHAM CITY COUNCIL v AMIN 2000 1 WLR 1071
DPP v MARSHALL 1988 3 AER 683
EALING LONDON BOROUGH COUNCIL v WOOLWORTHS PLC 1998 CLR 58
TAUNTON DEANE BOROUGH COUNCIL v BRICE 1997 LICENSING REVIEW 24
TEIXEIRE DE CASTRO v PORTUGAL 1998 28 EHRR 101
RIDGEWAY v QUEEN 1995 184 CLR 19
POLICE v LAVELLE 1979 1 NZLR 45
R v MACK 1988 44 CCC (3d) 513
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)
R v BELLINGHAM 2003 NICC 2
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
PUBLIC HEALTH (TOBACCO) ACT 2002 S10
HEALTH (MISCELLANEOUS PROVISIONS) ACT 2001 S3(3)
CONSTITUTIONAL LAW:
Defence
Entrapment - Use of test purchasers - Protocol - Failure to observe protocol -Whether evidence obtained through use of test purchasers admissible where protocol not followed - Dental Board v O'Callaghan [1969] IR 181 considered - Health(Miscellaneous Provisions) Act 2001 (No 14),s 2(3) - Case stated answered (2005/198SS -Murphy J - 10/11/2006) [2006] IEHC 376 Syon v Hewitt
the District Court posed the following questions for to the High Court: 1. was there a substantive defence of entrapment arising out of the use of the test purchase procedure available to the defendant? 2. if there was, had it been raised in the circumstances of the case? 3. 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. was 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 was evidence of entrapment, what discretion did the court have to exclude evidence obtained by means of test purchase? 10. was the use of children in the test purchase scheme contrary to public policy? 11. on whom was the onus of asserting the defence created by s. 3(3) of the Act of 1988 and what was 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?
Held by Mr Justice Murphy in answering the questions posed by the District Court that the offence created by section 31 of the Tobacco (Health Promotion and Protection) Act 1988 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 2(3) of the Health (Miscellaneous Provisions) Act 2001 of an accused taking reasonable steps to assure that the buyer had attained the requisite age. There was no substantive defence of entrapment arising out of the use of the test purchase of tobacco by minors. 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. 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.
Reporter: P.C.
Judgment of Mr. Justice Roderick Murphy dated the 10th day of November, 2006 .
This is a consultative case stated by Oliver McGuinness, judge of the District Court, Ballymote area, District No. 2, Sligo, arising out of the prosecution of the defendants for offences contrary to s. 3(1) of the tobacco (Health Promotion and Protection) Act, 1988, as amended by s. 2 of the Health (Miscellaneous Provisions) Act, 2001(hereinafter called the Tobacco Act).
It was alleged that on 14th July, 2003 the first defendant (the proprietor) and the second defendant (an employee) sold or offered to sell a packet of ten Silk Cut 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 issues by the North Western Health Board (the Health Board).
By summons dated 10th November, 2003 and 20th November, 2003 the first and second named defendants were requested to appear at the District Court on 9th December, 2003 and 13th January, 2004 respectively, as proprietor in the first case to answer the alleged offence at each, on 14th July, 2003 in a shop premises known as Gilmores, Gala Foodstore, Abbey Terrace, Ballymote, County Sligo did;
(a) sell
(b) offer to sell
a tobacco product to wit — ten Silk Cut Purple cigarettes — to a person under the age of 18 years, contrary to section 3(1) of the tobacco (Health Provision and Protection) Act, 1988as amended by section 2 of the Health (Miscellaneous Provisions) Act, 2001.
The matter having been heard before Judge Oliver McGuinness in a sitting of Sligo District Court on 1st April, 2004, and having heard the evidence in full for the prosecution and defence and having made findings of fact, elected to state a case to the High Court 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 in Irish law?
2. If there is, has it been raised in the circumstances of the case?
3. In the instant case, what is the significance of the non-statutory protocol established by the Officer of Tobacco Control?
4. Is it relevant that the defendant had not been the subject of any prior complaint?
5. Is 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. Is 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 this regard?
8. Is the offence created by s. 3(1) of the Act as amended one of strict liability for which the first defendant bears vicarious liability for the act of her employee?
9. If there is no defence of entrapment, what discretion do I 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 sub-s. (3) and what is the required standard of proof required?
12. Does the defence require some positive act on the part of the defendant or is it sufficient for her to have formed an opinion regarding the age of the child without taking any external step?
On 20th January, 2006, the notice party, having made an application to the court to be joined to the proceedings as amicus curiae, Quirke J. granted the relief sought.
The Tobacco (Health, Promotion and Protection) Act, 1988(No. 24 of 1988) provides for the prohibition and restriction on the consumption of tobacco products in designated areas and facilities. It also restricts the sale to persons under 18 years of age.
Section 3 (as amended by s. 2 of the Health (Miscellaneous Provisions) Act, 2001.
(1) Any person who sells, offers to sell, or makes available in relation to the sale of any other product, any tobacco products to a person under the age of 18 years, whether for his own use or otherwise, or who sells to any person, acting on behalf of a person under the age of 18 years, any tobacco products, shall be guilty of an offence and shall be...
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