Civil Fraud Quarterly Round-Up: Q1 2021
Stoptober is upon us. Part of the NHS’ Smokefree national campaign, it encourages people to give up smoking for the month of October. Individuals are given celebrity-endorsed messages of support and told that smokers are 5 times more likely to quit for good if they stop for just 28 days. But it is not only Stoptober that will be making headlines this month. From today, 1 October 2015, further laws are being introduced to criminalise smoking.
Q&As: Selling to or buying for tobacco/nicotine products anyone under the age of 18
What is it?
There are already a number of legislative provisions restricting cigarette sales. For the first time however, pursuant to s.92 of the Children and Families Act 2014 (“CFA”), it is now an offence to sell nicotine products to anyone under the age 18. This covers e-cigarettes, components thereof and nicotine chewing gum. It is also an offence, from today, for an adult to buy or try to buy such items for a person under 18 – so called ‘proxy purchasing’ [s.91 CFA].
Is there a defence?
Yes. For a s.91 CFA offence, it is a defence that a person had no reason to suspect that the individual concerned was under 18 [s.91(2) CFA]. For a s.92 offence, a person will have a defence if they took all reasonable precautions and exercised all due diligence to avoid committing the offence [s.92(4) CFA].
In relation to other sales, the legislation exempts liability if the product is sold for medical reasons or as part of a nicotine manufacturer’s business.
What is the penalty?
Both offences are summary only and on conviction can attract a financial penalty of up to £2,500 (Level 4 on the standard scale). Those committing such offences are also able to avoid court by being issued a Fixed Penalty Notice (“FPN”).
S.93 CFA extends the existing enforcement regime relating to persistent sales of tobacco products to those under 18. From today, if a person or a business is found to be repeatedly selling tobacco and/or nicotine products to a person under the age of 18, they could be liable for a Restricted Sales Order or Restricted Premises Order. Such applications can be made in the Magistrates’ Court will only be granted if the court is satisfied that: a) on at least 2 occasions within the period of 2 years ending with the date on which the relevant offence was committed, the offender has committed other tobacco or nicotine offences in relation to the relevant premises, and b) the applicant has, after making reasonable enquiries, given notice of the application to every person appearing to the applicant to be a person affected by it [s.93(6)-(7) Children and Young Persons Act 1933]. The Order prevents the sale of any nicotine or tobacco products on the premises to any person for up to one year.
Q&As: Smoking in Vehicles
What is it?
A person commits an offence if they smoke a cigarette in a private enclosed vehicle in the presence of a person under the age of 18. A driver is liable if they fail to stop their passenger from smoking in such circumstances [s.7-8 Health Act 2006 (“HA”)].
Who does this affect?
In order to be caught by the legislation, a private vehicle must be enclosed wholly or partly by a roof, a door or a window that may be opened. A roof includes any fixed or moveable structure which is capable of covering all or part of the vehicle. Most private vehicles will fit this description.
Boats, ships, aircraft, work vehicles and public transport are unaffected by this legislation as they are already controlled by their own rules and relevant smokefree legislation.
How many people need to be in the car?
The offence can only be committed when there are two people in a private vehicle: one must be under the age of 18 and one must be smoking. No offence can be committed if a person is driving alone and smoking.
Is it still legal to smoke e-cigarettes in a private vehicle in the presence of a person under the age of 18?
Yes. The offence only covers tobacco-based cigarettes.
Can you smoke in convertible with a person under the age of 18 present?
Yes if the roof is completely stowed away so that it does not cover all or part of the vehicle. It would therefore not be considered ‘enclosed’ and would not be caught by the legislation.
What about if I’m sitting in the doorway of a private enclosed vehicle and smoking?
If there is a person under the age of 18 in the car then this will still be caught by the legislation as the car is still ‘partially’ enclosed.
Are caravans or motor caravans caught by this legislation?
Yes, unless they are stationary and not on road or they are stationary and on a road but being used as living accommodation.
Do I have to put up a ‘no smoking’ sign in my car?
Is there a defence?
Yes. For an individual accused of failing to stop another person smoking, it is defence to show that they took reasonable steps to cause the person in question to stop smoking; or that they did not know and could not have reasonably been expected to know that the person in question was smoking; or on other grounds it was reasonable for them not to comply with their duty [s.8(5) HA]. It will be a defence for an individual accused of smoking in a smoke-free place to show that he did not know, and could not reasonably have been expected to know, that it was a smoke-free place – defence unlikely to succeed [s.7(4) HA].
What is the penalty?
Both offences can be dealt with by a FPN fine of £50. This can be given on the spot to both the driver – including a provisional driver – and the smoker (if different). On summary conviction, a person smoking in the vehicle could face a fine of up to £200 (Level 1 on the standard scale) and failing to prevent smoking could result in a fine of up to £2,500 (Level 4 on the standard scale).
The ability of a ‘failure to prevent’ offender in these circumstances to receive a FPN is in stark contrast to other similar legislation where no such opportunity is provided. For example, a pub owner who fails to prevent offenders can only be charged with the offence, and thus face a potential conviction and fine up to £2,500.
The penetration of smoking legislation into traditionally private spheres is nothing new. It is growing however and drivers, passengers, supermarkets and ‘Vape’ cafes need to be aware. Previously acceptable ways of practice need to be scrutinised to ensure they do not fall foul of the new law.
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