3. Operational Considerations
3.1 Risk Assessments and Disclosure Scotland
3.1.1 Local Authorities and Police Forces that wish to carry out test purchase operations involving children and young people should have regard to current practice and the principles of risk assessment. Test purchase operations should always be carried out in accordance with the Local Authority's and Police Force's own procedures in respect of health and safety.
3.1.2 This will be of particular relevance where operations are planned at premises licensed to sell alcoholic liquor.
3.1.3 An example of a 'standard' risk assessment that authorities may wish to undertake may be found in the separate but linked document "A Practical Guide to Test Purchasing in Scotland - Example Forms." It is a matter for each agency to determine how such an assessment is made.
3.1.4 It is anticipated that for routine test purchase operations the child or young person should be accompanied (albeit covertly) at all times by a police or local authority officer.
3.1.5 In the interests of maintaining the welfare of the volunteer as the paramount consideration at all times at least one covert officer should be in the premises with the volunteer wherever possible (please note the limited exception to this in section 3.5 below.) This may also be useful in terms of securing corroborative evidence for the commission of any offence.
3.1.6 Nothing in this Guide precludes the use of more than one child or young person in a test purchase operation if, in the opinion of the Local Authority or Police Force, this increases the security of the children and young persons within premises and presents a more realistic setting for the operation to take place. However consideration should be given in these circumstances to the possibility of two children or young people being called to court to give evidence.
3.1.7 All officers undertaking work with children and young persons must complete a Disclosure Scotland enhanced check. Local Authority Social Services or Human Resource staff should be able to assist with this process.
3.1.8 All officers involved in test purchase operations should be given training in how best to safeguard the child or young person acting as the test purchaser and to conduct effective, fair test purchasing operations.
3.2 Selection of Children and Young People
3.2.1 Enforcement agencies must ensure that the child or young person and, where appropriate, their parent(s)/carer(s) understand fully the nature of the test purchase operation and the possible outcomes where any illegal sale is made.
3.2.2 Participation may be paid or unpaid but must have the consent of the child or young person and, where appropriate, his/her parent(s) or carer(s) - see note on employment in section 3.6.
3.2.3 Where appropriate, the parent/carer of the child or young person must fully understand the nature of the task involved and give their written consent. An example of standard documentation is to be found in "Test Purchasing - Standard Forms" document. In particular, the parent/carer and the test purchaser must be made aware that the child or young person may be required to give evidence in court. Their evidence is likely to be essential to prove the case, and while efforts will be made to avoid having to cite the test purchaser (for example through agreement of evidence), this will not always be possible. The protections offered to child witnesses under the Vulnerable Witnesses (Scotland) Act 2004 will be available to all test purchasers who are under 16 at the time when the case comes to court.
3.2.4 Volunteers may be sought from any source, for example, the relatives of Local Authority staff, local youth groups, schools or police cadets (see also section on employment below). If, in the opinion of the officer, a child or young person appears to be over-eager to take part and to obtain a purchase, or if the officer has any other concerns about their involvement, they should be rejected for the purposes of that operation.
3.2.5 Whilst the actual age of the child or young person selected is a matter for each Local Authority or Police Force to determine within the context of the particular operation, the child or young person must be younger than the age stated for the purchase of the particular product.
3.2.6 It is recommended that volunteers should be at least 18 months younger than the legal minimum age for the purchase of the product in question. Therefore, where the legal age of purchase is 16 years for example for petroleum, lottery tickets, etc., it is recommended that the child volunteer should be 14 _ years or younger. Similarly, where the legal purchase age of the product is 18 years for example alcohol, butane gas refills, fireworks and '18' classified videos, the young volunteer should be no older than 16 1/ 2 years.
3.2.7 The child or young person must not look older than their age. It is acknowledged that child development is not an exact science; however, the child or young person should be representative of their age group.
3.2.8 Consideration should be given to the clothing and make up (if appropriate) worn by the test purchaser as this may affect the determination of the age of the purchaser.
3.2.9 Where possible the assessment for suitability for test purchasing of the child or young person should be undertaken by a guidance teacher or similarly experienced person with personal knowledge of the young person. This assessment should be in conjunction with an experienced enforcement officer.
3.2.10 Where the test purchase operation is for the purpose of obtaining evidence for potential legal proceedings, then proof of the age of the young person must be obtained at the outset. This may be in the form of the birth certificate produced by their parent or guardian, from information stored on their school database, or by evidence of photographic ID such as a Passport, Driving Licence or PASS accredited Proof of Age Card.
3.3 Welfare of Children and Young People involved in Test Purchase operations
3.3.1 The welfare of the young person involved in the test purchase operation is paramount. To assist with an interpretation of what this means reference may be made to:
3.3.2 The UN Convention on the Rights of the Child (International Treaty), which has been ratified by the UK Government, provides rights and welfare principles specifically for children.
3.3.3 Of particular relevance is Article 3 which provides that:
"'The best interests of the child shall be a primary consideration in all actions concerning children, and administrative measures shall be appropriate to ensure each child such protection and care as is necessary for his or her wellbeing, taking into account the rights and responsibilities of his or her parents or guardians. Institutions, services and facilities responsible for the care and protection of children shall conform with the established standards, particularly for safety, health, the number and suitability of staff, and competent supervision".
i) If at any time during the operation the child or young person indicates that he/she does not wish to continue, or he/she show signs of distress, the operation must be halted immediately
ii) If whilst in the care of the officer the child or young person is injured or suffers loss or damage to his/her property, the incident must, where appropriate, be reported to the parent/guardian and the appropriate Local Authority senior officer or senior police officer without delay
iii) The decision of the officer responsible for the volunteer's welfare should be final with regard to any matter relating to the use of the volunteer.
3.4 Briefing of the child or young person
3.4.1 The test purchase will, as far as possible, be made in the same manner, as a member of the public would seek to make a purchase. However there are some particular considerations that must be applied to test purchasing operations and thus the child or young person must be trained prior to any operation taking place:
i) They must be told as far as is reasonably possible exactly what to say and what not to say;
ii) For routine test purchase operations, the child or young person must be told to answer any questions that the seller may ask about their age truthfully. They should always give their correct age if asked. In addition, if asked whether there is anyone with them, the child or young person must be told to identify the official present.
iii) It is not recommended that the child or young person produce their own genuine PASS accredited Proof of Age card or other such document if they are asked to produce it by the seller. This may reveal the identity of the child or young person to the seller, which is not desirable. The child or young person should be instructed not to carry such documents and to state that "I don't have it with me" or some other similar phrase.
iv) Dependant on the type of test purchase operation, the child or young person may be asked to confirm that they do not have any money or target product on their person before a purchase is attempted.
This should be confirmed by asking him/her to turn out their pockets in front of two officers. The officers should then give the test purchaser a specific amount of money to be used for the test transaction. The money may be marked in some way so that it can be retrieved as evidence.
v) If the child's or young person's initial request is refused, he/she must be told not to attempt to persuade or coerce the seller to make a sale.
vi) The child or young person should be instructed that if their initial request for the product is refused, he/she should leave the premises and return to a predetermined location.
3.5 Additional Operational considerations
3.5.1 The anonymity of the child or young person is an important consideration during test purchases. They should not be asked to make test purchases in an area where they are likely to be recognised, such as near their home, school, club, place of work etc.
3.5.2 Colour photographs may be used in legal proceedings showing the appearance of the child or young person. Such photographs should be taken to clearly illustrate the height of the child or young person, perhaps against a height chart. Photos should be taken on the day of the proposed transaction and as near to the transaction/activity time as possible, given operational considerations. Officers may wish to consider requesting a copy of the retailer's CCTV tape with the relevant purchase on it in addition to any other evidence, although depending on the legislation being enforced the retailer may refuse such a request.
3.5.3 The child or young person should be supervised at all times. A minimum of two officers should accompany the child or young person during the exercise although this may not be such a strict requirement for young people older than 16. One officer, ideally of the same sex as the child or young person, should be responsible for the young person's safety and welfare for the duration of the exercise.
3.5.4 Wherever practical one officer should enter the premises before the young person. The officer should locate him/herself in a position where he/she can clearly observe and hear the attempted purchase, and if possible where the test purchaser can see them. The test purchase volunteer should not appear to be with the officer.
3.5.5 In certain circumstances it may be impractical for operational purposes for an officer to be in the premises at the same time as the young person ( e.g. where a trader only sells when no adults are present). In these circumstances the test transaction may only go ahead if after a strict full assessment of the situation no significant additional risk to the young person is identified. (It is envisaged that these additional risks are likely in premises such as nightclubs and busy bars but they may not be present in corner shops or leisure facilities for example).
3.5.6 An officer should not approach a seller until the child or young person has left the premises, unless the seller acts in any way that the officer believes may be prejudicial to the volunteer's welfare. In these circumstances the officer should declare himself or herself, ask the child or young person to leave the premises to a predetermined safe place and then explain the situation to the seller.
3.5.7 Officers should consider the age and maturity of the child or young person during the test purchase exercise and ensure that any hazards or risks are assessed and minimised in that context. For example where a child has to cross a busy road then the officer should escort him/her to within a safe distance of the premises.
3.6 Employment issues
3.6.1 A child or young person engaged in a test purchase exercise on behalf of a Local Authority or Police Force on the basis set out above would not be deemed to be "employed" by virtue of Section 28(1) of the Children and Young Persons (Scotland) Act 1937. However, any restrictions on hours of working or other conditions imposed by any relevant legislation or child employment bylaws should be considered during the planning stage of an exercise. The actual duration will depend on the age of the child or young person, his/her wishes and parental/carer's consent.
3.6.2 The Local Authority or Police Force may provide reasonable expenses or gratuities to a child or young person engaged in assisting with test purchase operations. These may include travel expenses, subsistence, vouchers or a cash payment.
3.7 Working with other agencies
3.7.1 It is recognised that whilst the majority of test purchase operations are carried out by Local Authority Trading Standards Services staff and Police Officers, there may be occasions when other agencies are involved, notably, but not exclusively, employees of the National Lottery operator.
3.7.2 Where joint operations are planned, it is recommended that a memorandum of understanding is agreed between the organisations at the outset such that roles and responsibilities are clear. It is further recommended that the partner organisations agree to the use of this Guide as the standard to be adhered to for the operation.
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