UK: Children In Test Purchasing – Is It Legal?

A new Consumer Rights Bill, to be unveiled around May 2013, aims to streamline confusing and overlapping legislation and regulation, and provide stronger protection for consumers. However, a vexed area which has not been addressed in the Bill is the use of children for 'test purchase', which remains unclear and confusing for both businesses and Trading Standards Officers ("TSO").

What is the current guidance?

Guidance was initially given to TSOs on how to plan test purchases back in 2006. The Age-restricted Products and Services Framework, published in December 2011, subsequently gave guidance as to what could be expected of all parties in relation to age-restricted products, but 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, generally nothing is said in those powers about a TSO recruiting a child volunteer and setting them up to act on their behalf. So the powers to use a child test purchaser are usually deemed to be implied.

What is the scope of the implication?

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 shopkeeper to execute the sale. In this regard, TSOs should have particular regard to LACORs guidance published in March 2010 which specifically provides that for routine test purchase operations, the child must be told to answer questions asked about their age truthfully, and, where the initial request to purchase goods is refused, the child must not attempt to persuade or coerce the seller to make a sale. However, 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. The Courts have supported this approach because "random testing may be the only practicable way of policing a particular trading activity" and because the volunteer is doing no more than a member of the public might do.

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. The findings in this case apply to child test purchasers as well as adults.

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. 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", 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 disagreed and quashed the decision, evidently believing that the officer had not gone too far. This was on the basis that there was no active encouragement of the offence and the licensing officer was simply doing no more than a member of the public may have done in response to the advertisement.

In a test purchase case involving 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? In the event of a prosecution, challenges could be brought and the proceedings might be stopped, as the Magistrates tried to do in the case involving Mr Dearlove.

What is the future for child volunteers?

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. Unfortunately, the opportunity has been missed to discuss this in the Consumer Rights Bill and remains unresolved.

Businesses should therefore expect TSOs to continue to actively use child test purchasers in relation to under age sales and should ensure their systems are robust enough to deal with such situations.

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