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Sometimes the only appropriate reaction to a brave but ultimately futile legal argument is a round of applause. That, at least, was my response upon seeing the truly magnificent defence run by Morrisons in Reading in response to being trapped by a council-sponsored sting operation (more formally referred to as a "test-purchase exercise").
As usual on these occasions the "test purchase subject" (a 15-year old lad) went into Morrisons and ordered 10 B & H. The lady behind the till didn't hear him properly, checked what he wanted, then sold him the cigarettes and put the money in the till. The lad was acting under instructions from the Council licensing officers, and no doubt one of those officers was standing close by observing the whole process from start to finish. So far, so all in accordance with the standard operating protocol.
Where caps need to be doffed, however, was in relation to Morrisons' defence at trial. The company was charged with selling to a child, and the magistrates found that Morrisons did not have proper procedures in place (training and supervision presumably) to ensure that such sales couldn't happen. Morrisons, however, argued that they had not made an under-age sale at all!
But how can that be, you might wonder - surely the test subject was a 15-year old lad? But wait, argued Morrisons - he was acting as the agent of the Council. He didn't buy the ciggies for himself, he bought them for the Council, with the Council's money, under the watchful gaze of a Council employee and, of course, there was no possible way that the Council would have let a 15-year old walk off with a packet of tabs stuffed in the back pocket of his jeans. Morrisons, therefore, sold 10 B & H to Reading Borough Council! No sale to an under-18, no offence, not guilty m'lud.
Sadly for shop-owners everywhere caught in such sting operations neither Reading Magistrates nor the Divisional Court in London, manned by two highly respected judges, were having any truck with this wonderful piece of legal logic. Noting that if Morrisons' argument were correct it would drive a coach and horses through this particular bit of legislation (and incidentally blow apart a significant weapon in the armoury of police forces and licensing departments up and down the country), they concluded that it didn't matter who the legal ownership of the cigarettes passed to, what mattered was who handed over the cash - who the shopkeeper was apparently doing the deal with.
In doing so they had to bypass some very logical and long-standing contractual legal points (settled case law going back many years) in order to achieve what they (probably correctly) regarded as the purpose of the criminal offence against selling tobacco products to minors. If they had sided with Morrisons, they would at a stroke have legalised all those sales over the years where alleged Mums, Dads and Grans have sent little Johnny down to the shop for for beer and fags. This was, perhaps predictably, a step too far for the judiciary.
We have advised a lot of shopkeepers and businesses over the years who have fallen foul of test-purchase exercises. It is critical that everyone involved in sale of age-restricted products has proper training, is adequately supervised where necessary and that full records are kept in relation to training and of occasions where sales have to be refused. If proper procedures are in place and are followed, sales to children can be avoided and, if they do take place accidentally, there may be a due diligence defence. If your business has any concerns, we may be able to help - please call Joe Lott on 0118 951 6352 or contact us by email on email@example.com.