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Underage Sales for Test Purchasing Policy

18 April 2019

1. About this Policy

1.1. This policy applies to the test purchase of any age restricted product including alcohol, tobacco, solvents, spray paints, knives and fireworks. It sets out the approach to be adopted when dealing with retailers of age restricted products and addresses the application of the Regulation of Investigatory Powers Act 2000 (RIPA) to test purchasing operations.

2. Test Purchasing

2.1. Trading Standards Officers conduct test purchases at premises to ensure they comply with the law in respect of age restricted products. These tests are usually undertaken at premises where intelligence indicates that the retailer has either sold age restricted products to a minor, previously sold when tested by us or they are in a ‘hotspot’ area. The intelligence we use comes from a variety of sources such as consumer complaint (including the on-line intelligence reporting tool available via the ECC website and Braintree DC and Brentwood BC websites), Essex Police and District Council licensing colleagues.

3. Trader advice regarding the sale of age restricted products to minors

3.1. Officers visit premises and give advisory notes, posters and guidance in respect to sales of age restricted products. One key focus of this advice is to recommend traders require ‘proof of age’ before making a sale rather than simply asking how old someone is or judging their age by appearance. This step will form part of the retailers “due diligence & reasonable precautions” defence if a genuine mistake is made. We also encourage the implementation of voluntary policies such as the ‘Challenge 25’ initiative for alcohol whereby if a customer wishing to buy alcohol does not appear to be over 25 then ID must be requested by the cashier.

4. Trading Standards Operational Procedure

4.1. Guidance is given in respect of undertaking test purchasing operations:

4.1.1. Code of Practice: Age Restricted Products published by BIS/BRDO in 2014

4.2. The guidance has a presumption that the young person will correctly state their age. However, it does go on to state that in ‘limited exceptional circumstances, young people may be permitted to answer untruthfully about their age when attempting a test purchase’. In Essex the young test purchaser is generally instructed to be honest if asked for their age when attempting to purchase age restricted products. We will occasionally instruct the test purchaser to state they are older (the legal minimum age for the age restricted product in question) but only in the following circumstances:

4.2.1. We have information that a trader is selling age-restricted products and is not asking for proof of age; and

4.2.2. The trader has been advised in writing that to simply ask the age of young people is not adequate.

4.2.3. The young person’s parent has given consent for the young person to say they are the legal minimum age for purchasing the product in question.

4.2.4. The young person consents to stating they are the legal minimum age for purchasing the product in question, if asked by the retailer.

4.3. If these criteria are met then when testing the premises, the young person is instructed to say, if asked, that they are the legal minimum age for purchasing the product in question.

4.4. This has become necessary because there are a number of traders who seem aware that in Essex the young person working with ECC TS is generally not allowed to lie about their age. This leads to the situation where the trader asks the age of the young person conducting the test purchase simply to check if they are working for TS, rather than asking for ‘proof of age’. If the child says that they are underage the trader refuses to sell and if they say they are older the trader will sell, as he can be sure that the child is not a TS test purchaser even if they appear underage.

4.5. This has led to occasions where the young test purchaser who has said they are under age has been confronted by the shop keeper, cashier or manager creating a potential for conflict, even though Trading Standards Officers are in close proximity inside the shop. Traders have occasionally been known to announce to customers in the shop that they know they have just been tested as the young person is not allowed to lie about their age. In other words the retailer brags about knowing when they are being subjected to a test purchase. It would be impossible to carry out a successful test purchase operation against such a retailer (who is highly likely to be persistently selling to young people and not asking for proof of age) if we did not adopt this policy.

5. Application of RIPA

5.1. RIPA Authorisation is required for directed surveillance where the following are all true:

  • it is covert, but not intrusive surveillance;
  • it is conducted for the purposes of a specific investigation or operation;
  • it is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation);
  • it is conducted otherwise than by way of an immediate response to events

5.1.1 The BIS/BRDO guidance states that an enforcing authority should consider the statutory requirements for authorisation under RIPA when conducting test purchase operations. The application of RIPA to test purchasing has been debated for some time with guidance and clarification being sought from several sources:

5.1.2. The Home Office Code of Practice for Covert Surveillance and Property Interference (June 2018) states “if the test purchaser is wearing recording equipment and is not authorised as a CHIS, or an adult is observing, consideration should be given to granting a directed surveillance authorisation”.

5.1.3. We requested opinion from the National Police Improvement Agency in June 2011 (before the BIS/BRDO Code was published) on the application of RIPA to our underage sales test purchasing operations. The response received (ref: OP056479) was that ‘authorisation for directed surveillance is unlikely to be appropriate’.

5.1.4. We requested opinion from the Serious Organised Crime Agency in March 2013 on the application of RIPA to our underage sales test purchasing operations. The response received (ref: OP069586) refers to the Supreme Court Case of Kinloch v Her Majesty’s Advocate [2012] UKSC 62 where Lord Hope said the appellant suggest that the appellant could not ‘reasonably have had any such expectation of privacy’ because he undertook ‘activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching what was going on. He took the risk of being seen and of his movements being noted down’. Whilst the Kinloch case related to observations in the street rather than in public parts of a shop, the issues are similar. The view of SOCA is ‘that authorisation as directed surveillance will not be appropriate’.

5.2. Prior to all test purchasing operations, all test purchase volunteers are talked through a ‘Notes to Volunteer’ document that specifically instructs the volunteer not to engage in any conversation with the shop keeper at the time of the test purchase. This approach minimises any risk of acquiring any private information about a person.

5.3. We have concluded that any surveillance undertaken under the Council’s usual practices for undertaking age restricted goods test purchasing operations will be unlikely to result in acquisition of private information such as to render the activities unlawful if an authorisation for directed surveillance is not obtained. On this basis the Council has concluded that it will not seek RIPA authorisation for test purchasing operations for age restricted goods unless there is a specific reason concerning a proposed operation. This might include the formation of a long-term customer relationship between an individual and a retailer, operations over a sustained period or the characteristics of premises.

5.4. In accordance with the BDRO Code (Age Restricted Products and Services – April 2014) and the Home Office Code of Practice for Covert Surveillance and Property Interference (June 2018) an assessment as to whether RIPA approval is required will be undertaken prior to each test purchase operation and the decision recorded.