Free Life 16, April 992, Tobacco, Children and Entrapment, by Sean Gabb
From Free Life, Issue 16, April 1992
ISSN: 0260 5112
Tobacco, Children and Entrapment: A Case for Concern
by David Gibbon (that is, by Sean Gabb)
It is commonly agreed in this country, that children should not be allowed to smoke or use any other tobacco product. Given our own present attitudes and knowledge, it would be hard for us to agree otherwise. On the one hand, children fall into a special class of persons. They are forbidden to do many things that most adults do without a second thought. To a large degree, they are relieved from suffering the legal consequences of their actions. The guiding principle is that they lack the capacity for informed choice, and ought to be protected until they are old enough to be presumed able to know what they are doing. On the other hand, tobacco has been associated with a number of unpleasant, and often fatal, illnesses. There is, then, little room for doubt that children and tobacco should, so far as possible, be kept apart.
Now, this agreement does not extend to the means by which the two are to be kept apart. How is this to be done? Who is to protect - parents or the State? My own view is that the burden should be placed very largely on parents. As a liberal, I reject the notion that there ought to be laws against whatever is disliked. I fear the extension of State power beyond a very small area. Even within this area, its powers are seldom used so effectively as we are led to believe. With every extension, they become at once still less effective and more potentially oppressive.
But parents have an immediate and natural interest in the well-being of their children. They are best able to promote that well-being. They ought to be trusted to promote it. There is, I admit, a case for some general supervision of their efforts. If a father is seen pushing a cigar into his little son's mouth, it may be well to punish him. For more extreme instances of abuse, it may even be well to take the boy out of his care. But, such extreme instances aside, the main line of defence for children is to be the spontaneous efforts of their parents.
If we look to the law concerning children and the use of tobacco, it is not my view that has prevailed. Section 7 of the Children and Young Persons Act 1933 makes it an offence in England and Wales to sell any tobacco product to a person under the age of 16. Until the Protection of Children (Tobacco) Act 1986 removed the defence, it was possible for a shopkeeper to plead that he did not know, nor had reason to believe, that any tobacco product other than cigarettes was intended for the purchaser's use. But it has for nearly 60 years now been an absolute offence to sell cigarettes to children. That is the law.
If, however, we look to the general practice, we see that it is my view that prevailed until fairly recently. In passing section 7 of the 1933 Act, Parliament created what the Americans call a "victimless crime". A child who buys himself 20 cigarettes may not be doing himself much good. To that extent, in a technical sense, he is the victim of the adult who sold them to him. But there is no complaining party. If someone steals my wallet, I have a reason for going to the Police and expecting help. The child who buys cigarettes has no ordinary reason for denouncing the seller. Unless there is a Policeman or some concerned member of the public present, there are no witnesses to the transaction. Therefore, we have a law that is both emphatic and for the most part unenforceable.
Some year ago, when I was a little boy, I would go openly every evening into my local newsagent, hand over Half a Crown, and ask for "ten No. 6 and an Evening News". I was never refused. It was only many years later that I discovered I was aiding and abetting a crime. For all my father and the shopkeeper seemed to care, I might have been buying a string of liquorice. Certainly, on the one occasion when he found me smoking a cigarette, I was beaten by my father. But that was his discipline. He would have regarded anyone who refused to sell cigarettes to me as a busybody.
Since then, more has become popularly known about the health risks associated with tobacco. So far as I can tell, shopkeepers are more reluctant nowadays to sell cigarettes to children. Some still are willing to sell them. But, to a far larger extent than in the past, parents must run their own errands before they can settle down for the evening with a newspaper and a cigarette.
This practical state of affairs has now been challenged. On Tuesday, the 9th of January 1990, a group of politicians and media celebrities came together and founded Parents Against Tobacco. Their stated aim was "to create a blockade between the tobacco pushers and our children and young people". They were quite firm on this point. "The Parents of this country" they declared
will not allow the health of their children to be threatened and their lives to be potentially curtailed by the activities and products of a ruthlessly cynical industry.
Of course, these people are using the most hysterical language to describe a very small problem. The tobacco companies are not actively promoting their goods to children. As Clive Turner, of the Tobacco Advisory Council, has said of the remaining instances where cigarettes are sold to children,
[i]t does us no good. It reflects very badly upon responsible retailers. And it affords all too much opportunity for tobacco detractors to criticize.
There is no reason to doubt his sincerity. The highest that anyone dares puff the value of the juvenile tobacco market is no more than £70 million - not, for obvious reasons, that anyone can do more than guess its value. This is undoubtedly a lot of money. But it represents between one and two per cent of the tobacco retail market. The main purpose of the campaign appears to be the obtaining of advertising bans and restrictions on adult smoking in public. For this purpose, the alleged danger to children is merely a convenient and powerful excuse.
These aspects of the campaign have already been thoroughly exposed by Chris Cooper, whose pamphlet is a model of good sense. I will not go over his arguments again. Instead, I will concentrate on the immediate means by which cigarettes are to be denied to children.
Seeing that the existing law had not been properly enforced, the organisers of Parents Against Tobacco decided to use agents provocateurs. Children plainly below the age of 16 were sent into various tobacconists and newsagents, to ask for cigarettes. Where they were successful, the authorities were informed, and the offending shopkeepers prosecuted.
I have two objections to these means. First, their use tends to reserve to the State an authority that I would see exercised by individual parents. If underage smoking really is a significant problem, it is for them to mount a blockade of the tobacco shops - and in the traditional way - not to call in the help of the Police and the Courts. Second, the means are in themselves highly dangerous.
There is much that distinguishes a court of justice from a lynch mob. One of the most fundamental points, however, is that the latter can proceed on common fame. In the former, a man will be punished only for what he has been proved to have done - never for what he is believed to be. It is the proud boast of our lawyers that this distinction is fully realised in England. The rule under which it is realised has been called "one of the most jealously guarded and deeply rooted principles of our criminal law". "The principle is" as stated by Mr Justice Channel,
that the prosecution are not allowed to prove that the prisoner has committed the offence with which he is charged by giving evidence that he is a person of bad character and one who is in the habit of committing crimes, for that is equivalent to asking the jury to say that because the prisoner has committed other offences he must therefore be guilty of the particular offence for which he is being tried.
Consider: A burglary is committed, and I am shortly after seen in the vicinity of the crime. I have a string of previous convictions. This burglary is very similar in its planning and execution to those for which I was convicted. I behave in a suspicious manner when I am taken in for questioning, and am unable to provide a satisfactory explanation for my presence in the area at the relevant time. Another householder positively identifies me as having been watching his property earlier in the evening. It would seem that the Police have found their criminal.
But, in the absence of my confession, or the production of good forensic evidence, there is no good case against me. Any charges against me will be rejected by the Court. The prosecution cannot open by telling the Jury of my previous crimes, and their similarities with this one. It cannot adduce my behaviour outside the other house. I might since my last conviction have turned to a life of honesty. The similarities might be coincidental - or, on a much closer examination, which the Court will have neither the time nor the ability to make, the similarities might be more apparent than real. I might have been outside the other house for any number of reasons. If I am unwise enough to announce that I am a man of unblemished character, the prosecution will be free to produce all my known previous offences in rebuttal. Otherwise, the Jury will be allowed access only to that evidence tending to prove my guilt of the offence with which I am presently charged.
Undoubtedly, this exclusionary rule does allow many guilty persons to go free. The tabloid newspapers are forever printing accounts of how some Jury has acquitted a man of rape, only to be told at the end of his long prior history of indecent assaults. But the utility of a rule of justice is not to be seen in every instance to which it is applied. We are ignorant, limited creatures. It is flattering to our nature to talk of legal pragmatism, or the need to consider each case on its merits. In fact, we have a simple choice. We can frame abstract rules of procedure that we believe will produce the greatest number of just decisions in the long term. Or we can do without rules, and hope against all experience that unfettered discretion will not degenerate into arbitrary injustice.
Now, while the admission of similar fact evidence would be an obvious breach of the principle stated above - that actions, not dispositions, are the only proper objects of punishment - the use of entrapment allows an equally serious breach, if less directly. Consider again: A child goes into a shop and asks for a packet of cigarettes. It may be the shopkeeper's invariable policy to refuse to sell to children. But, on this occasion, he does sell. Perhaps he is distracted by some personal care and fails to realise what he is doing. Perhaps this is a very charming, insinuating child. It may have been cautioned not to go beyond a simple request. But there is no credit to be had from the watching adults for a day spent going from shop to shop and gathering only refusals. Children are not particularly scrupulous about matters of truth and falsehood. As any reader of Richmal Crompton knows, the kind of child that permits itself to be used as an agent provocateur will pay such matters no attention at all. The money is taken, the cigarettes handed over. The authorities are informed, and the shopkeeper is summoned before the Magistrates to answer for his action.
True, on this occasion, he must answer a specific charge. But that is plainly so in none but the most technical of senses. It would, of course, be thought monstrous if one class of person were to go about tempting another class solely in the hope that a punishable offence might be committed - just as it would be if I went round a public house, knocking people's drinks over in the hope that someone might give me an occasion for beating him up. The one justification must be that the artificial offence will stand in place of previous real offences for which no evidence can be obtained. What we have here, then, is a means of bringing someone into court to answer for his presumed disposition.
Entrapment is an old practice. It is as old as misgovernment itself. It reached it fullest development in the despotic European states of the early 19th century, and no significant advances have been made since then in its methods. In the English-speaking world, it has always been regarded with aversion. There is at once the natural tendency to see it as an instrument of oppression, and the fact that its use has been frowned on by our courts, where not actually prohibited. I find it scarcely credible that the organisers of Parents Against Tobacco can openly boast of their employing it. But they are employing it; and their repeated claim - that the threat posed by tobacco to children is so great, that nothing must prevent them from running to the defence - seems to hold them from any consideration of wider consequences. This being so, I can only pass on to enquire whether there is not some other consideration to bring to their notice.
In the American jurisdictions, entrapment can be pleaded as a defence. We have probably seen in the television shows how careful Police spies must be in what they say to their pretended accomplices. They can observe and inform. If they can be shown to have gone beyond that, into incitement, their evidence will not be received.
In England, there is no comparable defence. If someone is tempted into a crime by the Police, the Judge has no discretion to exclude their evidence simply because it has been obtained unfairly. Even so, entrapment cannot be employed with complete impunity. While not in itself unlawful, it may give rise to criminal proceedings.
The general common law rule is that whoever procures the commission of an offence is guilty as an accomplice. This rule is codified in section 8 of the Accessories and Abetters Act 1861, as amended by the Criminal Law Act 1977:
Whoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.
The authorities do possess a certain vague immunity from prosecution. At the beginning of this century, a Police spy was sent to buy an abortifacient, and was held at the subsequent trial of the seller not to be an accomplice. Had she obtained or participated in an abortion, she might have joined the principal in the dock. But it seems that, so long as there is no irreparable damage, and the entrapment is for the sake of convicting a regular malefactor against whom no case could be brought by the normal means, the entrapper will not be liable for prosecution.
But it may be different where private citizens are concerned. Here, as elsewhere, it may now no longer be the case that a Policeman is merely a citizen paid to do full time what he has the right to do on his own account. There is little authority on this point. What does exist, though, is interesting. About 30 years ago, a Mr Smith decided to expose a corrupt public servant. To do this, he offered him a bribe contrary to the Public Bodies Corrupt Practices Act 1889. Mr Smith was caught and punished. His motive for offering the bribe was held to be irrelevant.
If, then, I join Parents Against Tobacco, and send a child to buy a packet of cigarettes, it may be that I am aiding and abetting an offence under section 7 of the 1933 Act - irrespective of my virtuous intention. Some allowance may be made in sentencing me; but none in deciding the matter of my guilt. I understand that many of the entrapments are being supervised by local trading standards officers. As such, they may be safe from criminal proceedings. But I have before me a copy of the December 1990 issue of Parents Against Tobacco, the campaign's official organ. On page 19 is a reprint of an article, Alex's Day, carried in an earlier issue. It begins:
On Sunday 20th December, 1989 my uncle Dr Sam Everington took me to London to 25 tobacconists in order to find out if they would sell cigarettes to (under "16's"), to me because I am under 16. The results were 19 out of 25 sold to me.
To prove that they did sell to him, this little boy of eleven years was photographed holding up three packets of Benson & Hedges.
Since Dr Everington is a private citizen, perhaps FOREST ought to consider sending this article to the Director of Public Prosecutions. It ought certainly to consider starting a record of those members of Parents Against Tobacco whose enthusiasm to "create a blockade" may have taken them outside the law.
I have no wish to see children smoking. I believe it to be a dangerous habit. But laws are not the only, or the best, means of keeping the young away from cigarettes. It goes without saying that the law, whatever I think of its wisdom or efficacy, must be obeyed. But I am absolutely opposed to the use of the surest method known of enforcing it. If entrapment will not be given up on the grounds of its general threat to our liberties, we must ensure so far as we can that its use is attended by certain unpleasant personal costs.
1. I quote from Chris Cooper's elegant demolition, The Political Abuse of Children: A Critique of the Parents Against Tobacco Campaign, FOREST [Freedom Organisation for the Right to Enjoy Smoking Tobacco], London, 1990, p. 2.
2. Ibid, p. 3.
3. Ibid, p. 4.
5. Per Lord Sankey, in Maxwell v Director of Public Prosecutions  Appeal Cases 309, at p. 317.
6. R v Fisher  1 King's Bench Reports 149, at p. 152.
7. R v Bickley (1909) 2 Criminal Appeal Reports 53, Court of Criminal Appeal.