Third Round Problem (Moot of 2000/2001)
Barnes v. Nerringham Council
The House Of Lords
Alfred Barnes was convicted at Nerringham Magistrates' Court of a violation of s7(1) of the Children & Young Persons Act 1933, as amended. The following facts were not in dispute:
Mr Barnes owns and runs a small newsagents in Nerringham. In January 2000, the Trading Standards Department of Nerringham Council decided to mount a series of spot checks on retailers, whereby children under the age of 16 would attempt illegally to purchase cigarettes. Child A volunteered to act as a test purchaser. Child A was fifteen years old at the time and turned sixteen on the 31st April 2000. The spot checks were supposed to take place in early March 2000 but were delayed until late April 2000 due to a staff shortage in the Trading Standards Department. On the 29th April 2000, Child A attempted to purchase one carton of cigarettes from Mr Barnes' shop. She was sold the carton by Mr Barnes without question.
It was accepted that, prior to the spot check, Nerringham Trading Standards had had no reason to suspect Mr Bames in particular of selling cigarettes to children under the age of sixteen, nor was it believed that there was any particular problem in the Nerringham area with underage sales. The series of spot checks had not been announced in the local media at any time beforehand.
In accordance with Home Office guidance, Nerringham Trading Standards took a photograph of Child A as she was dressed on the day of the spot checks against a height chart. The chart had been produced in court. It was common ground that Child A looked old for her age and could easily have been thought to be sixteen years of age. Nevertheless someone who had given serious consideration to A's age could not have concluded beyond all doubt that she was indeed sixteen. It was noted that the Home Office guidance stated that children over the age of fourteen should not be used in test purchase operations. It appeared that this element of the guidance had simply been overlooked by the staff member responsible. As required by the Home Office guidance, Nerringham Trading Standards had obtained written permission from Child A's mother for her to participate in the spot checks.
The justices took the view that it was irrelevant that Child A looked over sixteen, given that the word "apparently" had been deleted from s7(1) of the Act in 1991. Accordingly the offence was clearly one of strict liability. Furthermore, the Trading Standards Department's failure to follow the Home Office guidance was not a barrier to the prosecution nor to the evidence of Child A's purchase being led. The guidance was entirely optional.
Mr Barnes' appeal was rejected by the Divisional Court. He now appeals, with leave, to the House of Lords on the following grounds:
1. The evidence of Child A's purchase should have been excluded under s78 of the Police and Criminal Evidence Act 1984 on the grounds of entrapment. The trick had "been applied" to Mr Barnes; Mr Barnes had not "applied himself" to the trick. This was therefore the converse of the situation in R v Christou [1992] 1 QB 979.
2. In the alternative, the prosecution should have been stayed as an abuse of the process of the court (R v Latif [1996] 1 WLR 104).
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