Evidence of Children Making Underage Test Purchases.
Are test purchases made by children on behalf of enforcement authorities entrapment? Must child test purchasers give evidence to secure a conviction? First published in the Justice of the Peace (2006) 170 JPN 647.
Legal Challenges
Not surprisingly those facing a criminal prosecution, or their legal advisers, will explore every possible means of securing an acquittal. In cases involving the sale of age restricted products the prosecution evidence will often be obtained by means of a child making a test purchase on the instructions of a police or trading standards officer. There is not only a good deal of scope for factual challenge but a range of technical defences which may be tried. However, as the higher courts rule on the points of law associated with such defences, their scope is diminishing. Careful deployment of child test purchasers by prosecutors, and care by them in processing the evidence obtained, will reduce the scope for technical defences to a minimum. Nonetheless, the fact that the prosecution will inevitably be reluctant to call the child purchaser to give oral evidence means that, if their case is dependent upon that evidence, they could easily come unstuck.
Alleged unfairness
In the case of R (Verma) v Stratford Magistrates’ Court [2006] EWHC 715 (Admin), it was only the delay by the defence in requesting the child’s court attendance that spared the prosecutor from having to either call the child or abandon the prosecution.
The defendant was prosecuted for selling alcohol to a 15 year old girl when the minimum age was 18, contrary to s 169A of the Licensing Act 1964 (“LA”). The defendant had taken no steps to identify the girl’s age before taking her money and giving her the alcohol and her change. The girl had been instructed to make the purchase by an enforcement officer of the local council and she made the purchase wearing covert video and audio equipment. The girl made a statement under s 9 of the Criminal Justice Act 1967 (“CJA”) which was served on the defendant. He relied on the statutory defence provided by s 169A(2) LA, namely that “he believed that the person was not under eighteen” and “nobody could reasonably have suspected from [her] appearance that [she] was under eighteen.” The prosecution, however, sought to rely on photographs of the girl taken shortly before she made the test purchase. Only 5 days before the trial date the defendant indicated that he wished the girl to give oral evidence, no such request having been made within 7 days of the service of the statement nor at the pre-trial review. The justices refused the late application and further declined an application to exclude the evidence under s 78 of the Police and Criminal Evidence Act 1984 (“PACE”) as they did “not accept that its admission would have an adverse effect on the fairness of the proceedings.” The defendant was convicted and appealed alleging abuse of process and unfairness under s 78 of PACE.
Latham J noted that, if the defence had made the request for the girl to attend within the required 7 days, the prosecution would have been obliged either to call her or to seek to establish their case otherwise, “which might well be impossible”. He said that “one can readily understand a policy to the effect that in general, subject to being required to do so by the court, the evidence of underage witnesses should be read in accordance with the provisions of section 9.” Latham J, having found that the provisions of s 9 of the CJA had been complied with by the prosecution, decided that the question was whether admitting the girl’s evidence by way of her statement was so unfair that it was wrong not to have acceded to the defendant’s request that she should be called to give evidence. Latham J concluded that the defendant’s right to fairness in that regard was protected by s 78 of PACE and hence that he did not require any further protection by way of abuse of process. However, as 14 months had passed before the defendant made his request “any attempt to make a sensible comparison between [the girl’s] appearance at trial and the appearance at the time of the alleged offence [was] impracticable. The fact is that the photographs of the girl at the time of the offence were available to the Court.” The photographs taken just before the test purchase provided the best evidence as to the girl’s appearance at the relevant time and hence the defendant was not unfairly deprived of his opportunity to raise a defence under section 169A LA.
Latham LJ’s observation that once the prosecution had served the child’s s 9 statement it would either have to call the child or attempt to prove the case without her is not entirely right. In R v Haringey Justices ex p. DPP [1996] 1 All ER 828, Stuart-Smith LJ said that in cases where a s 9 statement has not been served “the prosecutor should retain an unfettered discretion [whether to call the witness] until the case starts, and the outline of evidence is given to the court.” The court, in exceptional cases, where it would otherwise be unfair to the defendant, retains the power to require the evidence to be given and, in such a situation, if the prosecution chooses not to call the witness, the court may do so itself and proffer the witness to the defence for cross-examination. It is only if the s 9 statement of a witness has not been served that the prosecution has an unfettered discretion not to call the witness. See also Adel Muhammed El Dabbah v Attorney General for Palestine [1944] AC 156. Kennedy LJ, in R v Russell-Jones [1995] 3 All ER 239 CA, said that “in deciding which statements to serve, the prosecution has an unfettered discretion, but must normally disclose material statements not served.” However, once statements have been served “generally speaking the prosecution must have at court all the witnesses ... whose statements have been served as witnesses on whom the prosecution intend to rely ... if the defence want those witnesses to attend.” The prosecution has a discretion whether to call such witnesses but it is not an unfettered one; it must be exercised in the interests of justice, so as to promote a fair trial. “In every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the court will only interfere with it if he has gone wrong in principle.” An example of where the prosecutor went wrong in principle was R v Wellingborough Magistrates’ Court ex p Francois (1994) 158 JP 813, where the prosecutor chose not to call her last two witnesses because she wanted to close the case to deal with another case that afternoon. In the instant case of Verma, the prosecution, having served the child’s statement, would have been hard pressed to argue, had the defence given notice within the statutory 7 days requiring her attendance, that it was not in the interests of justice to call her to give evidence. Furthermore, as the child’s statement presumably exhibited the video and audio evidence, the case would have been likely to fall without it.
Policy not to call child test purchasers
The prosecution’s case for upholding its policy of not calling children to give evidence, in Verma, ante, would have been stronger had it not formally served the child’s s 9 statement. The problem was that the prosecution’s case appears to have been wholly reliant on the child’s evidence together with the video and audio recording and hence the statement had to be served. Prosecutors must not put themselves in a situation where the defendant can avoid prosecution by simply requiring the child to attend within the 7 days time limit. Rather than equipping the child with recording equipment it might have been better to have had an undercover adult officer in the shop to witness the child making the purchase. That would also have avoided the risk to the child, however small, of being assaulted should an irate salesperson become aware that the child was making a secret recording.
Hearsay
Home Office Circular 17/1992 (“the Circular”) was issued following the implementation of the Children and Young Persons (Protection from Tobacco) Act 1991. That Act, inter alia, amended s 7 of the Children and Young Persons Act 1933 under which it is an offence to sell tobacco to children under the age of 16. Part lll of the Circular is titled “Enforcement Action by the Trading Standards Service: Summary of Local Authority Practice.” It reflected practices already, at that time, adopted by some local authorities. Part lll has been used as guidance not only in relation to tobacco products, but other goods including, alcohol, videos, knives, intoxicating substances and fireworks. The advice given by Part lll is that the child will be accompanied by an officer at all times. In practice this has entailed an undercover officer entering the shop first whilst the child is supervised by another officer outside the shop. The officer inside the shop can then observe the child entering the shop and witness the child asking to be supplied with, for example, a packet of cigarettes. Having made, or been refused, the purchase the child would then leave the shop to return to the officer waiting outside. The officer inside the shop, who has witnessed the transaction, can then approach the salesperson and follow up on any offence. The crucial part of this procedure is that the officer in the shop can give evidence of what he or she has seen and heard and there is no necessity for the child to give evidence. The appearance of the child can be confirmed by a photograph taken of the child wearing the same clothing etc. as when the purchase was made. Whilst the officer’s evidence of what the child said, which in most cases will be no more than, for example, “Please can I have a packet of 10 Benson & Hedges?” may be challenged as hearsay such a challenge should not succeed. At common law, evidence of what someone had said was only hearsay if it was adduced in order to prove the truth of what was said rather than the mere fact that it was said.
The combined effect of s 114 of the Criminal Justice Act 2003 (“CJA 2003”) and Part 34 of the Criminal Procedure Rules 2005 (“CPR”) is to statutorily define hearsay, in criminal proceedings, as “a statement not made in oral evidence in the proceedings … as evidence of any matter stated.” This is very similar to the common law position and means that a witness repeating something in evidence which he or she has heard is not hearsay where it is not put forward as “evidence of any matter stated”. The glossary to the CPR is also instructive and as “a guide to the meaning” of “hearsay evidence” says it is “oral or written statements made by someone who is not a witness in the case but which the court is asked to accept as proving what they say”.
Evidence of what the child said in making his or her test purchase is not evidence of any matter stated but simply evidence that the statement was made. If, for example, the child said to a salesperson “I am 15”, the witnessing officer’s evidence would not be evidence that the child was 15, but merely that that was what he or she had said. In cases where a statement is hearsay it may still be admitted where the procedures in the CPR are followed and the court decides it should be admitted having regard to the factors set out in s 114 CJA 2003. One of those factors is “how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings”. That further illustrates that “hearsay” statements are statements of a kind capable of being true or false. The statement: “Please can I have a packet of 10 Benson & Hedges?” is neither true nor false and is not inadmissible as hearsay.
At least some of the video and audio evidence recorded by the child in Verma, ante, would come within the statutory meaning of “hearsay” since the prosecution would have been setting out to prove, by means of such “statements”, the truth of what would have been recorded, namely that the salesperson took the child’s money and handed over the alcohol. Such recordings would fall within the definition of a “statement” in s 115 CJA 2003. It is likely that, if the prosecution has given notice under rule 34.2 CPR, that it wants to introduce hearsay evidence, namely the statements contained in the recordings, the court would be satisfied, under s 114(1)(d) CJA 2003 “that it is in the interests of justice for it to be admissible”. However, one of the factors which the court must have regard to in determining whether it would be in the interests of justice to admit the hearsay evidence is “whether oral evidence of the matter stated can be given and, if not, why it cannot”. That factor is one of 9 listed in s 114(2) and is by no means determinative. The fact that the child could give oral evidence would not necessarily mean that admitting the recorded evidence would not be in the interests of justice. It does mean, however, that the prosecution could not be certain that the evidence would be admitted.
It follows that although the prosecution’s case in Verma relied on the recordings it was not necessarily essential for them to have served a s 9 statement from the child. An officer would, no doubt, have been able to give direct evidence that the child entered the shop with the recording equipment, and blank tapes, and that she handed over the equipment and recorded tapes upon leaving the shop. In considering the interests of justice, the direct evidence of the child would serve no purpose save that the defence might, in cases where the apparent age of the child was a defence, argue that justice requires the court to see the child to make its own direct assessment of the age the child appears to be. Without the delay which occurred in Verma the court could well take that view.
Guidance
In 2001, the Local Authorities Co-ordinators of Regulatory Services (“LACORS”) issued a “Test Purchasing Best Code of Practice” (“the Code”) which, according to the Home Office in its publication “Lessons from the Summer 2004 Alcohol Misuse Enforcement Campaign”, “supersedes” the Circular. The Code was given some indirect statutory status in relation to the test purchasing of alcohol. This derives from the Licensing Act 2003 which provides that, in carrying out their functions, licensing authorities must have regard to guidance issued by the Secretary of State under s 182 of that Act. The guidance so issued states that “licensing authorities should … familiarise themselves with the [Code] insofar as it relates to the test purchasing of alcohol by trading standards officers … and … it is expected that enforcement officers will have regard to the [Code] on test purchasing operations.”
The Code was updated by LACORS in April 2006 and is now titled: “A Practical Guide to Test Purchasing” (“the Guide”). It is endorsed by both the Home Office and the Trading Standards Institute. The Code, and now the Guide, builds on what was originally set out in the Circular.
Although the Code, which would have been the main guidance at the time of the test purchase in Verma, did not make any reference to the possibility that a child might be wired up for audio or video surveillance, the new Guide says that this practice, in certain circumstances, is appropriate. The situation envisaged arises where the retailer’s premises are so small that if an officer were to be present at the time the child attempted to make a purchase the officer’s presence would be overly suspicious. Unfortunately some salespeople who want to sell age restricted products to underage children have learned to only do so when there is no adult who might be an undercover enforcement officer in earshot. The Guide suggests other means, such as a mobile phone, for the communication between the child and the officer to be maintained without the officer being in the shop. That would not, however, put the officer in a position where he or she could give evidence as to the transaction between the child and salesperson. The Guide says: “It may also be desirable for such attempts to be recorded, the use therefore of covert equipment is deemed appropriate but not essential.” That statement is questionable. Firstly, as the Guide purports to have no status greater than as a “guide”, how can it “deem” a course of conduct to be appropriate? Secondly, if the use of covert recording equipment is not “essential” then why should it be used? This is not explained. There is, however, a suggestion that more than one child might be involved in the same test purchase. A second child could therefore, as well as making the sting operation more plausible, corroborate the transaction. The downside, of course, would be that both children might well have to give oral evidence. If a child uses covert recording equipment the child might need to give oral evidence in support of it, especially as, in that scenario, there would be no officer to confirm the veracity of the tape. The Guide says that “as a general principle” the evidence of a sale will be given by the accompanying officer, but clearly that cannot happen if there is no accompanying officer. It may be, however, that a video recording could transmit live sound and vision to the officer outside the shop who can then verify what occurred. A live video link would also reduce the risk to the child. But, even if it is technically possible to achieve this, is the remaining risk too high? The more covert equipment the child carries, the more likely the child is to be self conscious and nervous and to be rumbled. The Guide provides that covert equipment may be used “subject to a risk assessment”. The reaction of a salesperson to being secretly filmed by a child, however, may be quite unpredictable and the question arises as to whether the potentially adverse consequences are so great that even a very small risk is too high. Annex 2 to the Guide gives an example of a risk assessment document. It contemplates a risk that, during a test purchase, the purchase is refused and the retailer becomes abusive, angry or threatening resulting in the child being exposed to danger. The severity of that risk is given as “high”. It is not difficult to imagine a salesperson becoming considerably more abusive, angry or threatening should he discover that the child is secretly recording him. An example of the risks associated with a “wired up” child is not given. Annex 3 to the Guide is referred to as an “example of standard documentation”. It is a form of agreement between the local authority and the child’s parents. It makes no reference to, even the possibility of, the child wearing surveillance equipment. On the contrary, it states that “at least one officer will supervise the young person at all times”. Although this does not preclude an amended form being used to deal with a specific case it is to be observed that the form closely reflects the original as contained within the Circular. A notable difference is that, unlike in the Circular, the form used in the Guide envisages that the child may not always be required to tell the truth. It states that the child will be told to tell the truth about his or her age “unless previously agreed that the operation is deemed exceptional.” The form therefore specifically includes reference to a particular exceptional circumstance but not to the exceptional circumstance of the child being wired up.
The rational for the possibility of the child being instructed to lie if asked questions about his or her age is that some retailers will ask child customers their age, knowing that the child, who wants to make the purchase, will lie. A test purchase by a child instructed to tell the truth would not therefore detect sales to customers who, by their appearance, are obviously under age. Children who want to purchase goods which they know they are too young to buy will almost inevitably lie about their age and so simply relying on what the child claims his her age to be cannot be a sufficient defence. The defence under s 169A(2) and (2A) LA, that a person charged with an offence of selling intoxicating liquor to a person under 18 had taken all reasonable steps to establish the person’s age, requires asking for “evidence” of age. Simply relying on what the child asserts cannot suffice. Neither would it suffice to establish the defence of taking all reasonable precautions or the exercise of all due diligence to avoid the commission of the offence under, for example, s 7 of the Children and Young Persons act 1933 in relation to the sale of tobacco to a person under 16.
Although there might be good reason for an enforcement officer to ask a child test purchaser to lie about his or her age, it is imperative that the child does nothing to persuade the salesperson to make the sale. (See Ealing London Borough Council v Woolworths Plc [1995] Crim LR 58, post.) In cases where the child is instructed to lie about his or her age, it is even more in the child’s interests, not to have to give evidence in court. Although the child will have done nothing more or less than instructed, one can envisage severe cross-examination of the child as to his or her honesty. After all, if the child has lied about his or her age (a crucial factor in the offence) why should the court believe the child’s other evidence? If prepared to lie on the instructions of the enforcement officer when making a test purchase, might the child also be acting on instructions to lie to the court? The answer may be an indefatigable “no”, but the question can be very demoralising for the child. Such questions are valid ones and would be a consequence of the prosecution’s policy. There is also a clear moral argument for saying that it is wrong to encourage a child to tell lies, in any circumstances, and that for this to be done by adults in authority is even worse. Whatever the pros and cons of that argument, a prosecuting authority needs to consider that their case may come before a bench composed of one or more magistrates who would find their actions in asking a child to lie to be reprehensible. Losing the sympathy of the court is not generally a good idea.
The Guide says that the welfare of the child is paramount and purports to set out the text of Article 3 of the United Nations Convention on the Rights of the Child. What is given is in fact a paraphrased version which amalgamates the three paragraphs of Article 3. The actual text is:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”
Article 3 does not in fact go as far as saying that the child’s welfare is paramount since the best interests of the child are said to be only “a” primary consideration rather than “the” primary consideration. The principle is, however, a laudable one and is consistent with the court’s duty in determining the upbringing of a child under the Children Act 1989.
The Guide also says, or implies, that in order to comply with Article 3, “if at any time during the operation the young person indicates that he/she does not wish to continue, or he/she shows signs of distress, the operation must be halted immediately.” But, even if a live video link were to be used, the officer outside the premises would only see what the child was pointing the camera at and not the condition of the child. A traumatised child may not think to say to the microphone “I’m a child get me out of here” for fear of blowing his or her cover. Whilst a code word might be agreed to be used by the child in a distress situation, the child may not remember it or may forget to use it in the heat of the moment or may think he or she was letting the officer or themselves down if they did not proceed with the operation. Even experienced officers occasionally fluff their lines.
The Circular provided that “the child should not wear clothes which make him/her look older; girls should not wear make-up during the exercise.” The Guide says that the child should be permitted to wear their normal clothing and make-up and jewellery. Although the Guide cautions that “nothing in this guide advocates that the young person should make a deliberate attempt to make themselves look older than they are”, that is missing the point. It does not matter whether make-up, for example, was applied to “deliberately” make the child look older than she is, what matters is the effect the make-up actually has on the apparent maturity of the child. If make-up causes a 15 year old girl to look like she is 18, she will look 18 whether or not the make-up was deliberately applied for that purpose. Again, whether deliberate or not, if a salesperson discovers that the child is undercover he (or she) may be more angered if he believes the child has set out to trap him. The salesperson’s defence may also include that he was duped by the make-up etc. whatever the truth behind the motives for using it. To some extent it is academic whether what the child is wearing makes the child look older since the ultimate evidence will be the child’s appearance on the photograph taken at the beginning of the operation which shows the child as she or he was during the operation. And yet, quite astonishingly, this piece of evidence which saved the day for the prosecution in Verma and the acquisition of which was the final piece of advice given in the Circular, does not get any mention in the Guide. No reason is given for that omission. One might surmise that it is to avoid the circulation of photographs of children. It will not be necessary for the prosecution to prove what the child making the test purchase looked like in order to make out an offence of selling an age restricted product. The prosecution will need to prove the age of the child test purchaser, but this can be done otherwise, and more accurately, than by means of the child’s visual appearance, see post. The need for visual evidence of the child’s appearance will, however, become necessary should a defence be raised based on the assertion, as in the Verma case, that nobody could reasonably have suspected from the child’s appearance that she was underage. Where a defence of that kind is relied upon, if the prosecution has not taken the precaution of recording photographic evidence of the child’s appearance at the time of the test purchase, the need for the child to give evidence will be almost inevitable.
Proof of age
The prosecution will need to prove the age of their child test purchaser, ideally in a way that does not require the child to give evidence.
In Wallworth v Balmer [1966] 1 WLR 16, the defendant, the licensee of an off-licence, sold some beer to two boys who, she said, told her they were 18. The boys attended court and were identified as the ones to whom the defendant had sold the beer. The stipendiary magistrate considered it to be obvious that the boys appeared to be 15, and hence that they were under 18, and the defendant was convicted of selling alcohol to persons under the age of 18 contrary to s 169 LA. On the defendant’s appeal, Parker LCJ said: “I am quite satisfied that there must be evidence of age; but I am also satisfied that that need not be oral evidence, but can be visual evidence from [seeing] the youths themselves. It would be an extraordinary thing if a prosecution should have to be defeated because a little girl of five was said to have been the person to whom the liquor was sold, merely because her mother had not been called to prove her age. ... There may be some cases where the facts speak for themselves in the sense that the youth or child is obviously under 18. On the other hand, there may be cases where little weight can be attached to the evidence of what one sees, and when it would be for the prosecution to give affirmative evidence of age. In the present case ... there was evidence of a kind upon which the magistrate could find ... that these two boys were under 18.” It follows from what Parker LCJ said that the court can determine a child’s age by his or her appearance or from other evidence such as that of the child’s mother (or presumably father).
It would not be necessary for the child’s mother to produce her child’s birth certificate in order to prove her child’s age. In R v Cox [1898] 1 QB 179, the defendant was charged with neglecting children under the age of 16 contrary to the Prevention of Cruelty to Children Act 1897. The children were not produced before the court, but the prosecution called evidence from a NSPCC officer and a police officer as to what they believed the ages of the children were and, in particular, that they were under 16. In addition, a school mistress gave evidence that the children attended a public elementary school and that she believed them to be below the statutory age limit for such schools. The defendant was convicted and appealed on the question of whether there was any legal evidence of the children’s age to have been put before the jury.
Counsel for the defendant submitted that “the only legal evidence of the age was the production of the certificate of birth, coupled with evidence of identity”. However, Russell LCJ held that “there is no such statutory requirement.” He said: “The fact that the child is under the age of sixteen may be proved by any lawful evidence. ... It is ... impossible to say [in this case] that there was not evidence, proper to be left to the jury, that the children were under sixteen.”
The methodology for the determination of age fell to be decided in a different context in R (B) v Mayor & Burgesses of the London Borough of Merton [2003] EWHC 1689 Admin. There, the claimant was a young asylum seeker whose application to be provided with accommodation by the local authority, under s 20 of the Children Act 1989, was refused as the social worker who assessed him formed the view that he was over the age of 18. Upon the claimant’s application for judicial review, Stanley Burnton J said: “The determination of an applicant’s age is rendered difficult by the absence of any reliable anthropometric test: for someone who is close to the age of 18, there is no reliable medical or other scientific test to determine whether he or she is over or under 18. The Guidelines for Paediatricians published in November 1999 by the Royal College of Paediatrics and Child Health states: ‘In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15-18, it is even less possible to be certain about age. … Age determination is an inexact science and the margin of error can sometimes be a much as 5 years either side.’ Different people living in the same country, with the same culture and diet, mature physically and psychologically at different rates.’” The local authority sought to rely on Wallworth v Balmer, ante, but Stanley Burnton J said he did not find that case of assistance because in that case “the youth of the boys appears to have been obvious” and “the defendant had the opportunity to question the boys or to call evidence as to their true age. He, having failed to do so, the magistrate was entitled, indeed bound, to decide the case on the evidence before him. There could have been no complaint of lack of due process or of an unfair procedure.” The decision in the instant case does not therefore affect the principle that a court can determine the age of a child by appearance alone in the absence of any evidence to challenge it. Appearance coupled with evidence from, for example, the child’s mother and the child’s birth certificate would be almost incontrovertible.
Not only is there no requirement for the child to give evidence to prove his or her age but also, if the child did give evidence, the court is not bound to accept the child’s evidence on that point. In R v Viasani (1867) 31 JP 260, the defendant was charged with causing and procuring a child, to beg, contrary to s 3 of the Vagrancy Act 1824. That Act only applied in relation to children under the age of 14. The child gave evidence that he was 16, but the magistrates were of the opinion that he was under 14. Cockburn CJ said: “The justices may derive part of the evidence of age from their own inspection. There was no necessity for being satisfied with the child’s own evidence on that point. Any other construction would render all but nugatory this most useful Act as to Vagrants.” Cockburn CJ’s decision was influenced by the mischief of the Act and the fact that if a court was bound to rely on what a child said as to his age, the defendant, who controlled the child, could always be acquitted by asking the child to lie about his age. Nonetheless, the visual appearance of a child, as we have seen in Wallworth v Balmer, may be sufficient evidence of a child’s age without the child giving evidence. Photographs may provide sufficient visual evidence.
Photographic Evidence
In Verma, ante, there was rightly no suggestion that the photographs taken of the child might be inadmissible. Such challenges are, however, sometimes made in this type of case. In C v C and C (Legitimacy: Photographic Evidence) [1972] 1 WLR 1335, a wife sought to prove that her husband was the father of her child. She produced photographs of the husband and the child to demonstrate their facial resemblance. Latey J said: “The evidence is admissible, though ... I must keep in the forefront of my mind ... what weight to attach to it.” Although Latey J pointed out the perils of relying on the photograph of a child, as evidence of paternity, it was nonetheless admissible. There is clearly more evidential weight in the evidence of a photograph where it is sought to establish that the child (at the time the photograph was taken) was below a certain age. Corroborative evidence might come from the child’s birth certificate or from the child’s mother or school.
It is sometimes wrongly argued that photographs are not admissible unless verified on oath by the person who took the negative. That contention was formerly supported by a footnote in Stone’s Justices’ Manual which, in the 1980 version (112th edition), read “Photographs must be verified by oath (Hindson v Ashby [1896] 2 Ch 1 at p 21) of the person who took the negative.” However, following the publication of the article, “Verification of Photographs” by Victor Smith, (1981) 125 SJ, Stone’s amended its comment which can now be found in the main text at paragraph 2-207. It reads: “A photograph is admissible provided it is verified on oath by a person able to speak to its accuracy, not necessarily the photographer.”
In Hindson v Ashby, ante, AL Smith LJ said that “photographs, unless verified upon oath, are not of themselves evidence, we looked at them as mere pictures. ... Photographs per se and unverified are no evidence at all.” What AL Smith LJ said about the need for verification in what was a civil case, applies a fortiori in a criminal case. Photographs taken of the child who made a test purchase, just before he or she did so, can be verified by the person who took the photograph or someone who witnessed it. That person might be an officer who was also in the picture to help give a better idea of relative heights and sizes.
Video evidence, by the same token, would also need to be verified. If the only prosecution witness in the shop when the child made her test purchase in the Verma case, ante, was the child herself and it was necessary for the prosecution to rely on the video evidence, it would be difficult to avoid the child having to give oral evidence, unless fortuitously the defence did not require the child to attend to give evidence.
Witness summons for child witness
It has already been noted that the prosecution can avoid having to call their child test purchaser to give evidence if the child does not make a s 9 statement or, even if he or she does, it is not served under the provisions of s 9 CJA. However, it does not follow, that the child may not have to give evidence. The defence might seek a summons under s 97(1) of the Magistrates’ Courts Act 1980 requiring the child to attend court to give evidence. If the defence is successful in getting the child to court by means of a witness summons it will not necessarily be of great benefit to them since, as they would have to call the child as their witness, they could not cross-examine the child. Nonetheless, simply being called to give evidence is a daunting experience for many adults and is likely to be even more so for a child.
In R v Highbury Corner Magistrates’ Court ex p Deering (1997) 161 JP 138, the defendant was charged with assaulting the woman he had been co-habiting with. He applied for a witness summons to call their nine-year-old son. The magistrate refused, on the grounds that it was not in the child’s interests, and the defendant sought judicial review. Schiemann LJ said: “Here is a witness of fact to an alleged incident. The materiality of the witness is common ground. The balancing act of deciding whether the harm to [the defendant] is outweighed by the interests of the child, accepting for the moment that it is an appropriate balancing act to be performed by someone, should … be performed by the court of trial and not at the stage of issuing or refusing to issue a warrant, in any event, unless the circumstances are obviously such that the court of trial must exercise its decision one way. … The best time to come to the sort of decision involved in this case will be when the case is about to be tried and the moment arises when it is desired to call the child.”
Under s 44 of the Children and Young Persons Act 1933, the court has a duty to have regard to the welfare of every child brought before it. The instant case of Deering tells us that the time to exercise that duty is when the child is about to be called. That can still leave the child worrying about attending court and about whether he or she will be called. It should be noted, however, that before issuing a witness summons, the court must be satisfied that the witness is likely to be able to give material evidence. It was held in R v Marylebone Magistrates’ Court ex p Gatting and Emburey (1990) 154 JP 549, that for evidence to be material it must support the case of the party who wishes to call the witness (anything else would not be cricket). In test purchase cases it is quite likely that the only evidence the child can give will be hostile to the defence. If so, a summons should not be issued. The defendants in the Gatting and Emburey case had been charged with using threatening, abusive or insulting words or behaviour at a Lords’ cricket match, at which Gatting and Emburey were playing. Gatting and Emburey applied for judicial review of the witness summonses taken out against them. Emburey had been in his dressing room when the pitch was invaded and only saw the aftermath from a distance. Although Gatting recalled the incident he thought the pitch invaders were stupid. They had shouted nasty things and wanted to confront him but were outnumbered by the players. Watkins LJ said: “Mr Emburey being as far away as he was from the incident could not provide the court with material evidence because his evidence would be valueless. … It has to be demonstrated for the purpose of s 97 [Magistrates’ Courts Act 1980] that he is material to the party who is seeking from the court an order to issue a summons. … Material to the case of the [defendants] means that he is material in the sense that the evidence which he apparently is able to give can be said to tend to support the defence of the [defendants]. … It is … plain to see that stating what he actually saw and heard and felt, Mr Gatting would be positively hostile to the defence in the evidence which he is able to give.”
Entrapment
A law enforcement officer going undercover needs to be careful not to take any action which could give rise to an allegation of entrapment. Although, as we shall see, “entrapment is not a defence known to English law” it can amount to unfairness under s 78 of PACE resulting in the evidence obtained by it being inadmissible. The danger is at least as great where the enforcement officer uses the agency of a child to make a test purchase.
In Ealing London Borough Council v Woolworths Plc [1995] Crim LR 58, an enforcement officer engaged a child of 11 years to purchase an “18” category video film from the defendant whilst under the observation of other trading standards officers. He was charged with supplying the video to a person who had not attained the age specified in the British Board of Film Classification Certificate. Russell LJ said: “The justices in their finding came to the conclusion that the Trading Standards Department’s officers had acted in a way that they described as ‘ultra vires’ by instructing the boy to make the purchase. The justices went on to say that the transaction was contrived and instigated by the Trading Standards Department and that consequently they were at liberty to exclude the evidence under s 78 of [PACE]. I have to say that … the justices were fundamentally in error in the approach that they made. Entrapment is not a defence known to English law. … If the process employed, which we understand to be a common practice up and down the country, were to fall foul of s 78, it would … emasculate the enforcement of a sensible piece of legislation which … was passed for the express purpose of protecting young people such as the boy employed for the test purchase in this case from being exposed to undesirable influences. I do not accept that what happened was in any sense an entrapment of [the defendant], or that the boy acted as an agent provocateur, nor, incidentally, did he commit any offence in purchasing the video. He did not incite, aid or abet the commission of an offence by [the defendant]. … Had there been any element of persuasion of the sales girl by the customer, then perhaps different considerations would have prevailed.”
RIPA
S 27 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provides that conduct to which Part ll of that Act applies “shall be lawful for all purposes if it is in accordance with an authorisation given under Part ll”. S 80 of RIPA, however, provides that nothing under the Act makes any conduct unlawful unless it is explicitly stated to be so. The remedy for someone whose private or family life has been covertly intruded into without authorisation given under RIPA lies in s 6 of the Human Rights Act 1998 (“HRA”), and the Article 8 Convention Right, under which unauthorised action by a public authority may be unlawful.
Straightforward test purchasing, as in the Verma case, where the child simply made a request to purchase goods without entering into any other conversation, is unlikely to require RIPA authorisation and hence is unlikely to fall foul of s 6 HRA. This is because the child in those circumstances would not be a “covert human intelligence source” which is defined in s 26(8) of RIPA as someone who (a) “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)” or (b) “covertly uses such a relationship to obtain information or to provide access to any information to another person” or (c) “covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.”
Is the child the purchaser or purchaser’s agent?
If it could be argued that a test purchasing child is acting as an agent for the enforcement officer who gave the instructions to make the purchase then it might follow that a sale to the child was really a sale to the officer and hence not to someone below the statutory age.
In Tesco Stores Ltd v Brent London Borough Council [1993] 2 All ER 718, the defendant sold a video film with an “18” classification to a 14 year old child who paid for it at a supermarket check out. Under s 11 Video Recordings Act 1984 it was a defence if the accused “neither knew nor had reasonable grounds to believe that the person concerned had not attained that age.” On appeal against his conviction the defendant contended that, as the child bought the video on the instructions of, and with money provided by, a trading standards officer, the supply was to the officer and not to the child. The Defendant also argued that, as it was a company, the court should look to its knowledge and not that of the employee who conducted the sale. Staughton LJ held, firstly that: “It is no doubt fairly common for children to arrive in shops and say that they wish to buy cigarettes or alcohol for a parent or some other adult. They may or may not be telling the truth. The same may happen with video recordings. I would doubt whether, even if the child is telling the truth, it should be held that the supply is to the principal in such a case and not to the child. But however that may be, [the child] in the present case said nothing to indicate that he was buying on behalf of [the trading standards officer]. In my opinion the supply was made to [the child].” Secondly: “It is the employee that sells the film at the check-out point who will have knowledge or reasonable grounds for belief. It is her knowledge or reasonable grounds that are relevant. Were it otherwise, the statute would be wholly ineffective in the case of a large company.”
Reasonable retailers
Reference has been made in this article to salespersons who intend to sell age restricted products to underage children. This will not generally be an intent to cause harm to children but simply a reluctance to lose the profit on potential underage sales. Fortunately, many retailers are acting responsibly by displaying notices, for the benefit of both their salespeople and their customers, to the effect that, for example, if a person appears to be under 21 they will need to prove that they are 18. Such recognition of the need for a margin of error in assessing a young person’s age is a desirable feature of the retailer’s due diligence system.
VICTOR SMITH
Footnote:
S 118(1)(d) CJA 2003 has preserved any common law rule under which in criminal proceedings “evidence relating to a person's age or date or place of birth may be given by a person without personal knowledge of the matter”.
See also Enfield LBC v Argos Ltd.