Children in Test Purchasing – Is it legal?

February 27, 2014

  1. The BIS Consultation ‘Enhancing Consumer Confidence through Effective Enforcement’ invited comments on codifying various enforcement powers (powers of entry, search, seizure, sampling, etc.) in about 60 laws which BIS oversees. These included Sunday trading, consumer credit, estate agents, intellectual property and fair trading.  BIS plans to produce a single generic set of enforcement powers for use by Trading Standards Officers and certain other enforcers, to be unveiled in the Consumer Rights Bill in about May 2013. The generic powers are expected to be based heavily on the existing provisions in the Consumer Protection from Unfair Trading Regulations 2008, together with modifications needed to apply European law (currently set out in the Enterprise Act 2002).
  2. A vexed area which has not been discussed in the consultation is the use of children for ‘test purchase’. This may be because, as a generality, legislation which prevents supplies of products to youngsters under a particular age is not the responsibility of BIS (an exception is the law governing video recordings). The Home Office and Department of Health usually have lead responsibility for legislation containing age-restricted products and therefore these laws fall outside the Consultation. Age-restricted hassles, however, were swept up within the Red Tape Challenge. Vince Cable promised to simplify regulations that retailers said were particularly burdensome, such as age verification on some restricted goods, and to abolish what was described as ‘heavy-handed’ interventions, such as shops needing a alcohol licence to sell chocolate liqueurs. The Cabinet Office promised to produce a single set of rules governing the use of age-restricted sales. A full list of age-restricted and dangerous laws can be found at http://www.legislation.gov.uk/all?theme=dangerous-goods.
  3. LACORS (as it then was) and the Home Office gave guidance to TSOs on how to plan test purchases in 2006 (most recently updated in 2010). LBRO (now BRDO – a unit within BIS) subsequently published the Age-restricted Products and Services Framework, published in December 2011. This gave guidance as to what could be expected of all parties in relation to age-restricted products, but it assumed that child test purchases are legal. But why? Legislation generally is silent as to test purchasing using a child. When powers to make purchases are express in the legislation, nothing is said in those powers about a TSO recruiting a child volunteer and setting him up to act on his behalf except where a young person would commit an offence if there were no express protection: examples are alcohol or crossbows. The powers which are used are usually implied. But what is the scope of this implication?
  4. The answer supplied by the courts seems to be that use of a child in test-purchasing is lawful as long as the conduct of the child and the TSO does not go too far in encouraging the luckless shopkeeper to execute the sale. The mere fact that a child is enabled by the TSO to present himself at a shop counter and the shopkeeper makes a mistake as to the child’s age is no excuse.
  5. The courts have supported this approach because “random testing may be the only practicable way of policing a particular trading activity” (R v. Loosely) and because the volunteer is doing no more than a member of the public might do (London Borough of Ealing v Woolworths). The public policy justification omitted by Parliament has thus been supplied by the courts.
  6. The courts have, moreover, resisted any temptation to look too closely into questions of agency. The Divisional Court has recently held that a test purchase with a child test purchaser is to be regarded as a sale to the child, not the TSO, because the child was the agent of an undisclosed principal. See Morrisons Supermarkets plc v Reading Borough Council.
  7. But what is ‘going too far’? Magistrates recently found that test purchasers had gone too far in a case concerning an adult offering to supply taxi services.  In East Riding of Yorkshire Council v Dearlove, Mr Dearlove was suspected, based on an advertisement in a free newspaper, of operating an unlicensed taxi. The licensing section of the Council gave him advice and he then said he would only drive his car for weddings and funerals (so that he did not need a licence). He also said he had undertaken no work whatsoever. Some months later, a licensing officer asked Mr Dearlove to drive her between Ferriby and Beverley for a fare of £100. Mr Dearlove did so, accepted the fare and gave a receipt and business card in the terms of the advertisement which had been in the free paper. The magistrates stayed the prosecution as an abuse of the process of the Court for “entrapment” (creating crime and then prosecuting it), largely because there was no evidence of any criminal activity until the booking and Mr Dearlove said he had done no work. Nonetheless, the Divisional Court quashed the decision and sent the case back to the magistrates on the grounds that no reasonable bench could have come to that conclusion.
  8. In LB Ealing v. Woolworths the judge commented that a child volunteer  “was simply playing a part in the situation which rendered Woolworths culpable. Had there been any element of persuasion of the sales staff by the customer, then perhaps different considerations would have prevailed”. So if that might be too far, what then? Two things. Firstly the prosecution might be stayed, as the magistrates tried to do in Dearlove. Secondly, the child and the TSO might commit an offence of aiding, abetting, inciting or procuring crime. In 1991 the House of Lords was asked to consider whether enforcement officers engaging with criminals in importing heroin into the US committed an offence of incitement. They declined to decide the point. In R v. Loosely Lord Hoffman thought that test purchasers are always counselling and procuring, perhaps inciting, the commission of an offence and would have no statutory defence to a prosecution.
  9. Thus test purchasing using child volunteers is not without risks and raises the constitutional issue as to whether it is the courts or Parliament which should comment on the ethicality of this issue. But if it is ever going to be discussed, it will not be in the Consumer Rights Bill.