A Practical Guide to Test Purchasing in Scotland

Section 4

4. Legal Requirements and considerations

4.1 Evidence from Children and Young people

4.1.1 It is likely that the test purchaser's evidence will be required to prove the case. However if the exercise is likely to result in prosecution efforts will be made, in line with Crown Office policy in relation to child and vulnerable adult witnesses, to avoid the test purchaser having to give evidence at any trial, for example by exploring other sources of evidence and/or seeking agreement of evidence.

4.1.2 After each test purchase attempt where a sale is made, a witness statement will be taken from the child or young person and the reason for doing so fully explained. Where the test purchaser is under 16 their parent or guardian should be present when the statement is being taken. As well as being an essential part of the evidence presented in any report to the Procurator Fiscal, these statements may also prove valuable in any subsequent re-visits or for evaluation purposes. Officers who accompany the volunteer whilst he/she attempts to make a purchase will provide the evidence of any sale.

4.2 Human Rights/Exclusion of Evidence

4.2.1 Prior to the Human Rights Act 1998 ( HRA) and the Regulation of Investigatory Powers (Scotland) 2000 ( RIPSA) coming into force the use of undercover officers by the police and other enforcement agencies, for test purchasing or other functions, was not regulated by statute.

4.2.2 In Scotland, the position on exclusion of evidence is governed by the general common law rules on the admissibility of evidence in criminal proceedings which require there to be an assessment on whether the admission of the evidence will be fair to the accused. In the context of test purchasing, Scots law recognises that certain evidence of the commission of a crime is inadmissible where it has been obtained by entrapment e.g. a police officer disguising him or herself and inciting the accused to commit a crime. Such an argument is likely to succeed only where it can be said that the accused would not have committed the offence but for the inducement and was not already predisposed or willing to commit crimes of the kind involved.

4.3 Appeal Cases

4.3.1 Appeal cases in which children have been used to make test purchases include:

• Texeira de Castro V Portugal (1998) 28 EHRR 101
• Tesco Stores Limited v Brent LBC [1993] 2 All ER 718
• Hereford and Worcester County Council v T & S Stores Plc (1994) 93 LGR 98
• LB of Ealing v Woolworths Plc [1995] Crim LR 58
• R v Loosley Attorney Generals Ref.(No3 of 2000) [2002] 1 UKHL 53
• City of Sunderland Council v Dawson ( CO/4130/2004)
• Davies v Carmarthenshire County Council [2005] EWHC 464

4.3.2 The above cases were decided in England. Therefore they are not binding in Scotland but some may be considered persuasive. Future amendments to this Scottish Guide will include Scottish cases of relevance for practitioners.

4.4 Test Purchasing and Regulation of Investigatory Powers (Scotland) Act 2000

4.4.1 Part II RIPSA provides a statutory basis to safeguard against challenges under Article 8 of the European Convention on Human Rights ( ECHR). The provisions create a system of authorisations for various types of surveillance and the conduct and use of covert human intelligence sources ( CHIS).

4.4.2 A young person will be acting as a CHIS or 'source' under section 1(7) of RIPSA if he/she:

i) establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

ii) covertly uses such a relationship to obtain information or to provide access to any information to another person;

iii) covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship.

4.4.3 Even where a young volunteer is not deemed to be a CHIS, it may still be considered good practice to follow the requirements of the Regulation of Investigatory Powers (Juveniles) (Scotland) Order 2002 ( SSI 2002/206) to ensure that:

• the safety and welfare of the child or young person has been fully considered;
• the officer is satisfied that any risk has been properly explained to, and understood by the child or young person;
• a risk assessment has been undertaken, covering the physical dangers and the moral and psychological aspect of the child or young person's deployment;
• a record is kept.

In the vast majority of test purchase exercises, it is likely that there will be minimal risk to the young volunteer involved.

4.4.5 The position in relation to the undercover officer who accompanies the child or young person also requires consideration as he or she may in some circumstances be regarded as conducting surveillance activities of a kind that might amount to unlawful conduct in breach of Article 8 of the European Convention on Human Rights. If this is the case then RIPSA authorisation should be sought for such activities. While this is unlikely to be the case in most test purchasing operations the responsible authority (the police or local authority Trading Standards Officers) should review this matter on a case-by-case basis. Care should be taken not to use the same test purchasers on repeat visits to premises and to avoid test purchase transactions taking place on premises other than those to which the public have access.

4.4.6 In the light of the ECHR, HRA and RIPSA, together with the general common law rules on the admissibility of evidence in criminal proceedings in Scotland, those involved in the planning and conducting of test purchasing exercises will need to have regard to:

i) The avoidance of inciting, instigating, persuading, pressurising or wheedling a person into committing an offence that, otherwise, would not have been committed - and the particular need for a child/young person test purchaser to behave as 'an ordinary member of the public' in such circumstances;

ii) The requirements for gathering/retaining relevant, admissible and sufficient evidence - an "unassailable" record of events - in order to prove the commission of an offence and to ensure that a fair trial takes place;

iii) The necessity of ensuring that any interference with the right to privacy, of any person affected by the activity, is lawful; in particular the need for public authorities to consider whether it is conduct which should be authorised under RIPSA;

iv) Other specific issues, arising from particular legislative provisions.

4.5 Enterprise Act 2002

4.5.1 Local Authorities may wish to consider the appropriateness of using Enterprise Act 2002 (Part 8) Enforcement Orders to prevent the ongoing sale of age restricted products to those who are under age. These may be sought in respect of those age related prohibitions specified in the Enterprise Act 2002 (Part 8 Domestic Infringements) Order 2003 ( SI 2003/1593).