Entrapment - Lecture Notes PDF

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Entrapment Law of Evidence

Entrapment  No agreed definition, range of possibilities o Any trick or trap to obtain evidence (not usual definition). o Facilitating commission of offence by providing opportunity that would not otherwise exist.  Extraordinary or ordinary o Pressurizing or persuading D to commit offence would not otherwise commit (instigation) Legal effect of entrapment  No defence to criminal offence: o Sang (1980) – Discretion to exclude if unfairness.  What is the legal significance of defining police tactics as ‘entrapment’? o Common law: no discretion to exclude (Sang) o Discretion to exclude under s78 (Looseley confirms Smurthwaite) Between facilitation and instigation  Undercover police officers pose as contract killers.  Smurthwaite and Gill (1994), Per Lord Taylor o The fact that the evidence had been obtained by entrapment, or by agent provocateur, or by a trick, does not of itself require the judge to exclude it. If, however, he considers that in all the circumstances the obtaining of the evidence in that case would have the adverse effect described in the statute, then he will exclude it… “fairness of the proceedings” involves a consideration not only of fairness to the accused but, also as has been said before, of fairness to the public.” Drawing the line  Factors relevant to s78 discretion from Smurthwaite and Gill (two separate cases) o Whether police were acting as agents provocateurs; o The nature of the entrapment; o Whether evidence was of admissions having been made in relation to a completed offence or of the commission of the offence itself; o Whether an unassailable record of what happened; and o Whether police abused their Code duties  Otherwise fact-sensitive o No more general guidance possible. Leading cases from House of Lords  Conjoined appeal (2001)  Loosely o Case where Loosely was prosecuted for supplying controlled drugs and an undercover police went to purchase some drugs he was then prosecuted. o D known to frequent and to sell drugs in particular pub. o (‘Rob’) undercover PO asks to sort him out a couple of bags of heroin. o Conviction upheld.  Attorney-General’s Reference (No3 of 2000) o Another undercover PO. o Asks D to ‘sort out some brown’ (heroin). o D says ‘nothing to do with heroin’ o Offered contraband cigarettes as ‘sweetener’ to convince him to get the drugs.

o Police overstepped the mark. o Conviction quashed. House of Lords: criteria for exclusion  Range of criteria, none decisive o Cases where unlikely to be a crime reported to the police (drugs offences, consensual offences, conspiracies) o Good faith; targeting and reasonable suspicion. o Extent and nature of policing involvement;  Pressure, reasonable suspicion, procedures followed and authorisation obtained (RIPA)  But core distinction emphasised (per LD Nicholls) between o ‘unexceptional opportunity’ and ‘extraordinary temptation’. o Persuade normally law-abiding to offend? HL referred to ECtHR decision  Key differences between Att-Gen and Loosely: o D initially reluctant and ‘not into’ selling heroin, persuaded by cheap contraband cigarettes.  Loosely o Responds immediately to initial enquiries.  Compare ECtHR decision in Teixeira de Castro v Portugal (1999) o D not known as dealer, has to go and buy drugd himself. o No authorisation and supervision. o Was D persuaded to commit offence would not otherwise have committed? o No record of conversation, only police evidence. o HL stated that Loosely and Teixeira can be distinguished on the facts. Consistent application of principles?  Have the courts applied these principles consistently?  Cases very fact specific.  Possible to distinguish cases on the facts.  Breaches of codes do not always lead to exclusion – again very fact specific/  Courts too willing to accept police evidence?  Kingsley Hyland and Clive Walker very critical – “Underground policing and underwhelming laws” Criminal Law Review 2014. Applications: other undercover operations  Distinction between extraordinary and ordinary opportunity used in other cases before and since o Hailing unlicensed cabs  Nottingham CC v Amin (2000)  Case involving taxi drivers, who had been licensed to carry out certain types of work which means they were not allowed to be hailed down by potential customers.  By allowing them to be hailed down they were in breach of their license and Nottingham CC wanted to find out whether they were up to that or not.  So they sent out two council employees to pretend to be potential customers and hail down a taxi, and a few of them stopped.  There was then a prosecution for breaching license requirements and the issue was whether the evidence of the two employees should have been excluded by the court or whether it should have been allowed?  High court – Nothing wrong with the evidence, they would have committed this offence anyway.

 An ‘unexceptional opportunity’ Lord Bingham  Evidence allowed to be used. o R v Jones (2007)  Sexual offences case where D was accused of inciting a child to commit acts of a sexual nature.  The defendant had written various things in a public place asking for children between certain ages to contact him if they wanted to have sexual experience. This was brought to the police attention and they called the number pretending to be a 12 year old girl.  Undercover PO pretending to be 12.  As a result of this communication he sent various sexually explicit texts and other messages to her thinking that she was a 12 year old child, and he was arrested and prosecuted.  His argument was that that evidence should be excluded because the undercover police officer was acting as an agent provocateur.  CA – Held the evidence was fine.  Again ‘unexceptional opportunity.’ o What about other forms of temptation?  Williams v DPP (1993)  There was some discussion as to whether this is a case where the evidence should have been excluded or not.  The police were aware that a certain area was a high crime area, they didn’t have nay specific intelligence about specific crimes but it was know to be a high crime area so they got a van and filled it full with fake packages of cigarettes, and left it open.  Some defendants came and were prosecuted buy the police.  The issue was, was the police action in this particular case justified?  Appeal Court held that there was nothing wrong with the evidence, the police had acted properly and the evidence was allowed.  Can be distinguished from Jones where the defendant himself initiated what took place. Application to more elaborate long-term sting operations.  Front store operations  Christou and Wright (1992) o Police set up a jewellers shop in an area where they had received intelligence where there was a lot of stolen goods being sold second hand. o They let it be known that were prepared to buy jewellery despite its origin. o People went to the shop and sold stolen items and the police were able to trace these items and arrested the defendants for handling stolen properly. o Question for the court was whether they should permit this evidence – were they acting properly when they set up the shop? o Court decided there was nothing wrong with this the court said  ‘they voluntarily applied themselves to trick’. o No unfairness in that Ds were not persuaded to do anything they would not otherwise have done  Now requirements needed of RIPA authorisation for operations such as Christou and Wright.  But exclusion where covert police questioning side-steps Code C o Bryce 1992 (Cheap Saab).  Court excluded undercover police evidence.  There was a stolen Saab motor vehicle valued at around £20,000, and the defendant was selling it for £1,500.  The car had been stole.

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Police were investigating the theft of this car and the handling of the stolen property and carried out various covert police work in order to discover whether Bryce was responsible for stealing the car. An undercover police officer spoke to Bryce and managed to obtain various submissions of guilt from him. Police wanted to use this evidence against him. Appeal Court said the evidence should have been excluded, as the police were effectively interviewing the defendant covertly under the Police and Criminal Evidence Act when the police have sufficient evidence to arrest a person they should arrest them, take them to the police station, caution them and interview them properly and there should be a record of what they say. However, in this case he did not know it was a police officer, he had not been cautioned, and there was no record of exactly what he said, so it was a breach of the codes, undermining his rights. So the reasoning behind this was not the deception as such, it was that the police had used the deception to breach the codes of practice.

Drawing the line: ‘private’ stings  Shannon (2001): News of World sting operation o Example of an operation involving the News of the World, which was a very active newspaper. o There was a person working for the newspaper, who used to set up sting operations involving celebrities which usually involved getting famous people to supply drugs or get involved in the supply of drugs. And Shannon was a famous actor at the time and the employee set up an operation whereby he filmed himself speaking to Shannon and recorded it and during the course of the conversation he got Shannon to provide him with some drugs. o This was then a big story on the newspaper. o After the newspaper made money form it, they provided the file to the police who arrested Shannon and he was prosecuted and convicted by the crown court. o He appealed saying that the evidence of the recordings should have been excluded. o CA: said it was properly allowed - “this was a case where at various points what was said or done amounted to ‘enticement’”, so the newspaper employee tried to persuade the defendant to provide it but they said the proceedings were not unfair. o Key issue fairness of proceedings,  Nature and reliability of evidence (everything was on tape).  Fairness or fullness of D’s opportunity to challenge.  D given opportunity for 2nd thoughts. o CA did not disturb exercise of discretion. o Note other more recent concerns about undercover journalists or other third parties Abuse of process  What the defence will be arguing is that the case should be brought to an end – it is not about excluding evidence.  If the judge agrees then he will stop the prosecution.  There are two grounds for staying a case on abuse of process o Firstly is where the defendant would not be able to have a fair trial – if the evidence was allowed it would mean the defendant would not be able to get a fair trial i.e. where the prosecution may have lost some evidence. o Secondly, the process amounts to an affront of public conscience – because of the way the prosecution have behaved it would be an abuse of the process of the courts to allow the prosecution to carry on prosecuting the defendant.  Court’s duty is to stay the proceedings if it considers that D would not receive a fair trial.  Even if it considers that a fair trial is possible (as here), the court should still stay the proceedings is the abuse of process ‘amounts to an affront to the public conscience’.

o Latif & Shahzad (1996) (HL)  There was an allegation against the defendant that he was involved in the importation of Class A drugs from Pakistan.  The reason he was prosecuted was because an undercover Customs officer assisted in the importation of the controlled drug.  The defence argued that because there was a law enforcement officer involved in the importation of the drug, that meant that the whole case should be stopped as it was an affront to public conscience.  Court disagreed and conviction upheld.  HL – said that the court should be prepared to stop a prosecution if the court comes to the conclusion that because of the way in which the public authorities have behaved it would be an affront to public conscience to allow it to proceed. Abuse of process and s78  Differences in procedure o D must apply at least 2 weeks before date of trial for stay on grounds of abuse): o Exclusion can be raised at trial itself.  Differences in consequences. o Exclusion of evidence vs stopping proceedings  Are the functions of the two similar? o Seek to guarantee fairness of trial and legitimacy of criminal process. o Sometimes only stopping the prosecution will suffice. Deciding between the two approaches  How did HL in Looseley see application to entrapment?  Stopping prosecution appropriate response where continuance ‘affront to the public conscience’ or ‘deeply offensive to ordinary notions of fairness’ o Lord Nicholls and Hoffman felt usually wrongful police entrapment (state-created crime) should lead to discontinuance for abuse. o Such entrapment involves extraordinary opportunity offered or D persuaded into committing offence would not normally commit. o But where trap or trick follows offence: bugging… might have other evidence. In the media…  ‘Undercover Cops, File on Four, 2nd October 2012  ‘Cyberspies’ File on Four, 20 September 2011.  Rob Evans and Paul Lewis ‘Police spies infiltrating activists to be more tightly regulated’, Guardian 19th June 2013.  Andrew Parker Head of MI5 – First live interview – Today Programme 17th Sept 2015, Guardian report of same date....