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Burning a hole in the law

18 April 11

The new legislation threatening banning orders on anyone found selling tobacco to under-18s appears not to be as effective as was intended

by Tom Johnston

While the new laws regarding the sale and display of tobacco products are strictly speaking not licensing, they have a similar framework and are of significance to anyone who advises shopkeepers large or small. Much of the Tobacco and Primary Medical Services (Scotland) Act 2010 came into force on 1 April 2011. Most of the rest of it will be effective from 1 October 2011. The part relating to display is currently under legal challenge by Imperial Tobacco, and will be disregarded for the purposes of this article.

It will be necessary for anyone wishing to sell tobacco products to register with the Scottish ministers. This can be done online and must be done by 1 October. Selling such products will be an offence if you have not registered, or if your registration has been cancelled. For the first time, it will be an offence for under-18s to attempt to buy cigarettes, and for persons over 18 to buy for those under 18. Cigarette vending machines will be outlawed.

Enforcement regime

The regime will be policed in the main by local authorities through their trading standards departments. Councils are required to carry out a programme of enforcement at least once in every 12 months. Officers will have the power to use under-18s for test purchasing. They will have powers of entry, search and seizure and the power to issue fixed penalty notices for breaches of the Act. A person aggrieved by the issue of a fixed penalty notice may make representations – to the council which employs the person who issued it. How has this part of the legislation passed the ECHR scrutiny?

It is intended to operate a “three strikes and you’re out” policy. If a person receives three fixed penalty notices within two years the council may, within two months of the last offence, make an application to the sheriff for a tobacco retailing banning order (TRBO). The sheriff must be satisfied, on a balance of probabilities, that such an order is necessary to prevent the commission of further offences. It is also possible for ancillary orders to be made banning a person against whom a TRBO has been made from being connected to a person carrying on a tobacco business at the specified premises or seeking to control a person carrying on a tobacco business there. A right of appeal to the sheriff principal is allowed.

Individual escape

I wonder whether the legislation is as tightly worded as was intended. Presumably most of the fixed penalty notices will be for sale to underagers. But where the registered retailer is an individual, the offence is committed only by the person making the sale, not by the retailer. Where an offence has been committed by a corporate body and where it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, a relevant individual, that individual commits the offence and is liable to be proceeded against. “Relevant individual” includes directors, managers, partners, and members of LLPs.

This is a sort of upside down vicarious responsibility. It will control offences regarding display, but what of sales? Vicarious responsibility cannot be implied: it must be expressly stated. In liquor licensing legislation (where s 102 of the 2005 Act is identical to s 4 of the 2010 Act), it is quite clear that the “sale” is made by the individual shop assistant, not by the business owner. But what of the individual registered retailer who does not work on the shop floor? How can they ever be liable to receive a fixed penalty notice in connection with a sale? A TRBO may only be applied for if the person (as opposed to the premises) has been the subject of three or more relevant enforcement actions. Having heard various trading standards officers giving talks on the new Act, and read the Government’s explanatory notes, I do not think its limitations are fully appreciated.

Tom Johnston, Young & Partners LLP, Dunfermline and Glasgow

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