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Loosely, R v. [2001] UKHL 53 (25th October, 2001)
HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Hoffmann Lord Hutton
Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
REGINA
v
LOOSELY
(APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION)
ATTORNEY GENERAL'S REFERENCE NUMBER 3 OF 2000
ON 25 OCTOBER 2001
[2001] UKHL 53
LORD NICHOLLS OF BIRKENHEAD
My Lords,
1. Every court has an inherent power and duty to prevent abuse of its process. This
is a fundamental principle of the rule of law. By recourse to this principle courts
ensure that executive agents of the state do not misuse the coercive, law enforcement
functions of the courts and thereby oppress citizens of the state. Entrapment, with
which these two appeals are concerned, is an instance where such misuse may occur.
It is simply not acceptable that the state through its agents should lure its citizens into
committing acts forbidden by the law and then seek to prosecute them for doing so.
That would be entrapment. That would be a misuse of state power, and an abuse of
the process of the courts. The unattractive consequences, frightening and sinister in
extreme cases, which state conduct of this nature could have are obvious. The role of
the courts is to stand between the state and its citizens and make sure this does not
happen.
2. These propositions, I apprehend, are not controversial. The difficulty lies in
identifying conduct which is caught by such imprecise words as lure or incite or
entice or instigate. If police officers acted only as detectives and passive observers,
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there would be little problem in identifying the boundary between permissible and
impermissible police conduct. But that would not be a satisfactory place for the
boundary line. Detection and prosecution of consensual crimes committed in private
would be extremely difficult. Trafficking in drugs is one instance. With such crimes
there is usually no victim to report the matter to the police. And sometimes victims or
witnesses are unwilling to give evidence.
3. Moreover, and importantly, in some instances a degree of active involvement by
the police in the commission of a crime is generally regarded as acceptable. Test
purchases fall easily into this category. In Director of Public Prosecutions v Marshall
[1988] 3 All ER 683 a trader was approached in his shop in the same way as any
ordinary customer might have done. In breach of his licence he sold individual cans of
lager to plain-clothes police officers. In Nottingham City Council v Amin [2000] 1
WLR 1071 a taxi was being driven in an area not covered by its licence. The driver
accepted plain-clothes police officers as fare paying passengers. Police conduct of this
nature does not attract reprobation even though, in the latter case, the roof light on the
taxi was not illuminated. The police behaved in the same way as any member of the
public wanting a taxi in the normal course might have done. Indeed, conduct of this
nature by officials is sometimes expressly authorised by Act of Parliament. The
statute creating an offence may authorise officials to make test purchases, as in
section 27 of the Trade Descriptions Act 1968.
4. Thus, there are occasions when it is necessary for the police to resort to
investigatory techniques in which the police themselves are the reporters and the
witnesses of the commission of a crime. Sometimes the particular technique adopted
is acceptable. Sometimes it is not. For even when the use of these investigatory
techniques is justified, there are limits to what is acceptable. Take a case where an
undercover policeman repeatedly badgers a vulnerable drug addict for a supply of
drugs in return for excessive and ever increasing amounts of money. Eventually the
addict yields to the importunity and pressure, and supplies drugs. He is then
prosecuted for doing so. Plainly, this result would be objectionable. The crime
committed by the addict could readily be characterised as artificial or state-created
crime. In the absence of the police operation, the addict might well never have
supplied drugs to anyone.
5. I shall return later to the knotty problem of defining, or identifying, the limits of
acceptable 'pro-active' conduct by the police. First I must consider where English law
now stands on the overall question of entrapment.
The remedy for entrapment
6. Common law countries differ in the nature of the remedy provided in entrapment
cases. In the United States entrapment is a substantive defence in the federal courts.
This is based on a presumption of legislative intent. 'Congress could not have
intended that its statutes were to be enforced by tempting innocent persons into
violations': see Sherman v United States (1957) 356 US 369, 372. The issue therefore
is one for decision by the jury. The Canadian Supreme Court has adopted a different
approach. In Canada the remedy is by way of stay of proceedings: see R v Mack
(1988) 44 CCC (3d) 513. In Australia a third approach has found favour. In Ridgeway
v The Queen (1995) 184 CLR 19 the High Court declined to follow the Canadian
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route. A stay is regarded as inappropriate once it is accepted that entrapment is not a
substantive defence. But a trial judge has a discretion to exclude evidence of an
offence where its commission was brought about by unlawful or improper conduct on
the part of law enforcement officers. Likewise, in New Zealand the court has an
inherent jurisdiction to exclude evidence so as to prevent an abuse of process by the
avoidance of unfairness: see Police v Lavalle [1979] 1 NZLR 45
7. The judicial response to entrapment in this country before R v Sang [1980] AC
402 can be summarised as follows. Entrapment attracted expressions of judicial
disapproval, notably by Lord Goddard CJ in Brannan v Peek [1948] 1 KB 68, 72, and
Lord Parker CJ in R v Birtles [1969] 1 WLR 1047, 1049, but it did not furnish a
substantive defence: see R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974)
60 Cr App R 59. Although not constituting a defence, in some cases judges excluded
evidence in entrapment cases: R v Foulder [1973] Crim LR 45, R v Burnett [1973]
Crim LR 748 and R v Ameer [1977] Crim LR 104. Entrapment was regarded as a
mitigating factor in, for instance, R v McCann (1971) 56 Cr App R 359 .
8. In R v Sang [1980] AC 402 your Lordships' House affirmed the Court of Appeal
decisions of R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App
R 59. The House treated it as axiomatic that entrapment does not exist as a substantive
defence in English law. Lord Diplock, at p 432, noted that many crimes are
committed by one person at the instigation of others. The fact that the counsellor or
procurer is a policeman or a police informer, although it may be of relevance in
mitigation of penalty for the offence, cannot affect the guilt of the principal offender:
'both the physical element (actus reus) and the mental element (mens rea) of the
offence with which he is charged are present in his case'. Likewise, Lord Fraser of
Tullybelton observed, at p 446, that all the elements, factual and mental, of guilt are
present and no finding other than guilty would be logically possible. The degree of
guilt may be modified by the inducement and that can appropriately be reflected in the
sentence. Lord Fraser famously added that when Eve, taxed with having eaten
forbidden fruit, replied 'the serpent beguiled me', her excuse was at most a plea in
mitigation and not a complete defence.
9. In Sang the House also decided that, leaving aside admissions and confessions,
the court is not concerned with how evidence was obtained. It is no ground for the
exercise of a trial judge's discretion to exclude evidence that the evidence was
obtained as the result of the activities of an agent provocateur, or by other unfair or
improper means. That would be to let in the defence of entrapment by the back door.
R v Foulder [1973] Crim LR 45, R v Burnett [1973] Crim LR 748 and R v Ameer
[1977] Crim LR 104 were wrongly decided. Entrapment is a mitigating factor and no
more. Lord Scarman, at [1980] AC 402, 451, stated that the true relevance of official
entrapment into the commission of crime is upon the question of sentence, when its
mitigating value may be high.
10. The decision in Sang has not escaped criticism. For present purposes it is
sufficient to note that the reasoning of their Lordships was directed at the question
whether entrapment constitutes a substantive defence or is a cause for excluding
evidence at the trial. But, as already noted, entrapment raises another and anterior
issue, an issue of an altogether different dimension, quite distinct from the question of
the defendant's guilt or the actual conduct of the trial. Entrapment assumes the
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defendant did the proscribed act, with the necessary intent, and without duress. But
when entrapment occurs, the commission of the offence by the defendant has been
brought about by the state's own agents. This is the crucially important difference
between cases of entrapment and other cases of instigated crime. In Sang their
Lordships were not called upon to consider whether a judge has power to stay
criminal proceedings when law enforcement officers have acted in this way.
Implicitly, however, they rejected the availability of this judicial remedy in
entrapment cases. Lord Scarman said so expressly. He observed that a court is in duty
bound to protect itself against abuse of its process, which 'is not this case': see p 455.
11. In this field English criminal law has undergone substantial development over
the comparatively short period of twenty years since Sang was decided. The first
development has been statutory. The decision in Sang on the admissibility of evidence
obtained unfairly has been reversed by Parliament, by section 78 of the Police and
Criminal Evidence Act 1984. Under section 78 the court now has power to exclude
evidence on which the prosecution proposes to rely if, having regard to all the
circumstances, the court considers the admission of the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to admit it.
The circumstances to which the court is to have regard include, expressly, the
circumstances in which the evidence was obtained.
12. The phrase 'fairness of the proceedings' in section 78 is directed primarily at
matters going to fairness in the actual conduct of the trial; for instance, the reliability
of the evidence and the defendant's ability to test its reliability. But, rightly, the courts
have been unwilling to limit the scope of this wide and comprehensive expression
strictly to procedural fairness. In R v Smurthwaite [1994] 1 All ER 898, 902, Lord
Taylor of Gosforth CJ stated that section 78 has not altered the substantive rule that
entrapment does not of itself provide a defence. The fact that the evidence was
obtained by entrapment does not of itself require the judge to exclude it. But, in
deciding whether to admit the evidence of an undercover police officer, the judge may
take into account matters such as whether the officer was enticing the defendant to
commit an offence he would not otherwise have committed, the nature of any
entrapment, and how active or passive was the officer's role in obtaining the evidence.
I do not understand Auld LJ to have been expressing a contrary view in R v Chalkley
[1998] 2 Cr App R 79, 105-107. Chalkley was not an entrapment case. Most recently
in R v Shannon [2001] 1 WLR 51, 68, para 39, Potter LJ, as I read his judgment,
accepted that evidence may properly be excluded when the behaviour of the police or
prosecuting authority has been such as to justify a stay on grounds of abuse of
process.
13. Next, the common law also has developed since the decision in Sang. In R v
Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 your Lordships'
House held that the court has jurisdiction to stay proceedings and order the release of
the accused when the court becomes aware there has been a serious abuse of power by
the executive. The court can refuse to allow the police or prosecuting authorities to
take advantage of such an abuse of power by regarding it as an abuse of the court's
process. Lord Griffiths, at p 62, echoed the words of Lord Devlin that the courts
'cannot contemplate for a moment the transference to the executive of the
responsibility for seeing that the process of law is not abused': see Connelly v
Director of Public Prosecutions [1964] AC 1254, 1354. The judiciary should accept a
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responsibility for the maintenance of the rule of law that embraces a willingness to
oversee executive action and to refuse to countenance behaviour that 'threatens either
basic human rights or the rule of law'.
14. In Bennett the defendant claimed he had been forcibly abducted and brought to
this country to face trial in disregard of extradition laws. It was not an entrapment
case. But in R v Latif [1996] 1 WLR 104 the House confirmed that the same principle
is applicable in entrapment cases: see Lord Steyn, at pp 112-113.
15. These statutory and common law developments have been reinforced by the
Human Rights Act 1998. It is unlawful for the court, as a public authority, to act in a
way which is incompatible with a Convention right. Entrapment, and the use of
evidence obtained by entrapment ('as a result of police incitement'), may deprive a
defendant of the right to a fair trial embodied in article 6: see the decision of the
European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EHRR
101.
16. Thus, although entrapment is not a substantive defence, English law has now
developed remedies in respect of entrapment: the court may stay the relevant criminal
proceedings, and the court may exclude evidence pursuant to section 78. In these
respects Sang has been overtaken. Of these two remedies the grant of a stay, rather
than the exclusion of evidence at the trial, should normally be regarded as the
appropriate response in a case of entrapment. Exclusion of evidence from the trial will
often have the same result in practice as an order staying the proceedings. Without,
for instance, the evidence of the undercover police officers the prosecution will often
be unable to proceed. But this is not necessarily so. There may be real evidence, or
evidence of other witnesses. Exclusion of all the prosecution evidence would, of
course, dispose of any anomaly in this regard. But a direction to this effect would
really be a stay of the proceedings under another name. Quite apart from these
practical considerations, as a matter of principle a stay of the proceedings, or of the
relevant charges, is the more appropriate form of remedy. A prosecution founded on
entrapment would be an abuse of the court's process. The court will not permit the
prosecutorial arm of the state to behave in this way.
17. I should add that when ordering a stay, and refusing to let a prosecution
continue, the court is not seeking to exercise disciplinary powers over the police,
although staying a prosecution may have this effect. As emphasised earlier, the
objection to criminal proceedings founded on entrapment lies much deeper. For the
same reason, entrapment is not a matter going only to the blameworthiness or
culpability of the defendant and, hence, to sentence as distinct from conviction.
Entrapment goes to the propriety of there being a prosecution at all for the relevant
offence, having regard to the state's involvement in the circumstance in which it was
committed.
18. A further point of principle should be noted. As observed by Auld LJ in R v
Chalkley [1998] 2 Cr App R 79, 105, a decision on whether to stay criminal
proceedings as an abuse of process is distinct from a determination of the forensic
fairness of admitting evidence. Different tests are applicable to these two decisions.
Accordingly, when considering an application by a defendant to exclude evidence
under section 78, courts should distinguish clearly between an application to exclude
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evidence on the ground that the defendant should not be tried at all and an application
to exclude evidence on the ground of procedural fairness. Sometimes a defendant may
base his application under section 78 on both grounds. Then the court will need to
reach a separate decision on each ground.
Entrapment and the limits of acceptable police conduct
19. As already noted, the judicial response to entrapment is based on the need to
uphold the rule of law. A defendant is excused, not because he is less culpable,
although he may be, but because the police have behaved improperly. Police conduct
which brings about, to use the catch-phrase, state-created crime is unacceptable and
improper. To prosecute in such circumstances would be an affront to the public
conscience, to borrow the language of Lord Steyn in R v Latif [1996] 1 WLR 104,
112. In a very broad sense of the word, such a prosecution would not be fair.
20. But what is meant by 'state-created crime'? What is the legal concept underlying
oft-repeated expressions such as lure, incite, or instigate? What is the distinction, of
relevance in the commission of a crime, which these phrases are seeking to draw? If
an undercover policeman asks a known drug supplier for drugs, is he 'luring' the
unsuspecting supplier into committing a crime? If not, why not? What does 'lure'
mean in this context? By what criteria is a trial judge to distinguish the acceptable
from the unacceptable?
21. Questions such as these have generated extensive overseas judicial utterances
and also academic literature, both in this country and abroad. The several suggested
answers have different emphases and, to a limited extent, different practical
consequences. Underlying some of the learning is the notion that expressions such as
state-created crime and lure and incite focus attention on the role played by the police
in the formation of the defendant's intent to commit the crime in question. If the
defendant already had the intent to commit a crime of the same or a similar kind, then
the police did no more than give him the opportunity to fulfil his existing intent. This
is unobjectionable. If the defendant was already presently disposed to commit such a
crime, should opportunity arise, that is not entrapment. That is not state-created crime.
The matter stands differently if the defendant lacked such a predisposition, and the
police were responsible for implanting the necessary intent.
22. Reasoning such as this, especially in the United States, is a prominent feature of
the juridical analysis of why some police conduct is acceptable and other conduct is
not. But, even leaving aside the difficulty that predisposition is an inherently
speculative inference of fact, this analysis is inadequate as a tool. In particular, taken
to its logical conclusion this analysis means that whenever the defendant's
predisposition to commit the crime is established there cannot be a defence of
entrapment. In the United States the law seems to have been taken this distance : see
Hampton v United States (1976) 425 US 484, 489 - 490 per Rehnquist CJ. But surely
it is going too far to say that a person who is ready and willing to commit a certain
kind of crime can never be entrapped into committing it. As Lamer J observed in R v
Mack (1988) 44 CCC (3d) 513, 551, it is always possible that, notwithstanding a
person's predisposition, in the particular case it was the conduct of the police which
led the defendant into committing the crime. In other words, the existence or absence
of predisposition in the individual is not the criterion by which the acceptability of
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police conduct is to be decided. Predisposition does not make acceptable what would
otherwise be unacceptable conduct on the part of the police or other law enforcement
agencies. Predisposition does not negative misuse of state power.
23. Accordingly, one has to look elsewhere for assistance in identifying the limits
to the types of police conduct which, in any set of circumstances, are acceptable. On
this a useful guide is to consider whether the police did no more than present the
defendant with an unexceptional opportunity to commit a crime. I emphasise the word
unexceptional. The yardstick for the purpose of this test is, in general, whether the
police conduct preceding the commission of the offence was no more than might have
been expected from others in the circumstances. Police conduct of this nature is not to
be regarded as inciting or instigating crime, or luring a person into committing a
crime. The police did no more than others could be expected to do. The police did not
create crime artificially. McHugh J had this approach in mind in Ridgeway v The
Queen (1995) 184 CLR 19, 92, when he said:
'The State can justify the use of entrapment techniques to induce the
commission of an offence only when the inducement is consistent with the
ordinary temptations and stratagems that are likely to be encountered in the
course of criminal activity. That may mean that some degree of deception,
importunity and even threats on the part of the authorities may be acceptable.
But once the State goes beyond the ordinary, it is likely to increase the
incidence of crime by artificial means.'
24. This is by no means the only factor to be taken into account when assessing the
propriety of police conduct. The investigatory technique of providing an opportunity
to commit a crime touches upon other sensitive areas. Of its nature this technique is
intrusive, to a greater or lesser degree, depending on the facts. It should not be applied
in a random fashion, and used for wholesale 'virtue-testing', without good reason. The
greater the degree of intrusiveness, the closer will the court scrutinise the reason for
using it. On this, proportionality has a role to play.
25. Ultimately the overall consideration is always whether the conduct of the police
or other law enforcement agency was so seriously improper as to bring the
administration of justice into disrepute. Lord Steyn's formulation of a prosecution
which would affront the public conscience is substantially to the same effect: see R v
Latif [1996] 1 WLR 104, 112. So is Lord Bingham of Cornhill CJ's reference to
conviction and punishment which would be deeply offensive to ordinary notions of
fairness: see Nottingham City Council v Amin [2000] 1 WLR 1071, 1076. In applying
these formulations the court has regard to all the circumstances of the case. The
following comments may be made on some circumstances which are of particular
relevance.
26. The nature of the offence. The use of pro-active techniques is more needed and,
hence, more appropriate, in some circumstances than others. The secrecy and
difficulty of detection, and the manner in which the particular criminal activity is
carried on, are relevant considerations.
27. The reason for the particular police operation. It goes without saying that the
police must act in good faith and not, for example, as part of a malicious vendetta
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against an individual or group of individuals. Having reasonable grounds for
suspicion is one way good faith may be established, but having grounds for suspicion
of a particular individual is not always essential. Sometimes suspicion may be centred
on a particular place, such as a particular public house. Sometimes random testing
may be the only practicable way of policing a particular trading activity.
28. The nature and extent of police participation in the crime. The greater the
inducement held out by the police, and the more forceful or persistent the police
overtures, the more readily may a court conclude that the police overstepped the
boundary: their conduct might well have brought about commission of a crime by a
person who would normally avoid crime of that kind. In assessing the weight to be
attached to the police inducement, regard is to be had to the defendant's
circumstances, including his vulnerability. This is not because the standards of
acceptable behaviour are variable. Rather, this is a recognition that what may be a
significant inducement to one person may not be so to another. For the police to
behave as would an ordinary customer of a trade, whether lawful or unlawful, being
carried on by the defendant will not normally be regarded as objectionable.
29. The defendant's criminal record. The defendant's criminal record is unlikely to
be relevant unless it can be linked to other factors grounding reasonable suspicion that
the defendant is currently engaged in criminal activity. As Frankfurter J said, past
crimes do not forever outlaw the criminal and open him to police practices, aimed at
securing repeated convictions, from which the ordinary citizen is protected: see
Sherman v United States (1957) 356 US 369, 383.
The Human Rights Convention
30. The question raised by Attorney General's Reference No. 3 of 2000 is whether,
in a case involving the commission of an offence by an accused at the instigation of
undercover police officers, the judicial discretion conferred by section 78 of the
Police and Criminal Evidence Act 1984 or the court's power to stay proceedings as an
abuse of the court has been modified by article 6 of the European Convention of
Human Rights and the jurisprudence of the European Court of Human Rights. I would
answer that question in the negative. I do not discern any appreciable difference
between the requirements of article 6, or the Strasbourg jurisprudence on article 6,
and English law as it has developed in recent years and as I have sought to describe it.
31. The case of Teixeira de Castro v Portugal (1998) 28 EHRR 101 concerned a
conviction for trafficking in heroin, based mainly on statements of two police officers.
The European Court of Human Rights held that the necessary inference from the
circumstances was that these officers had 'exercised an influence such as to incite the
commission of the offence'. The court concluded there had been a violation of the
applicant's right to a fair trial under article 6(1). The court's statement of principle, at
p 115, in para 36, is not divergent from the approach of English law. I agree with the
observations of my noble and learned friend Lord Hoffmann on the court's application
of that principle to the facts of that case.
32. For these reasons, and those given by my noble and learned friends Lord
Hoffmann and Lord Hutton, I would make the orders Lord Hutton proposes on these
two appeals.
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LORD MACKAY OF CLASHFERN
My Lords,
33. I have had the advantage of reading in draft the speeches prepared by my noble
and learned friends, Lord Nicholls of Birkenhead, Lord Hoffman and Lord Hutton. I
agree with the orders that Lord Hutton proposes in these two appeals, and with the
reasons my noble and learned friends have given for so doing.
34. I consider that the detailed analysis of particular circumstances which would
justify ordering a stay or which would not do so will be helpful in reaching a
conclusion but no two cases are likely to be exactly the same in all their
circumstances. I would wish to stress that the ultimate question for the tribunal facing
a case in which entrapment is alleged is whether, in the words of my noble and
learned friend, Lord Nicholls of Birkenhead, the state through its agents had lured the
accused into committing an act or acts forbidden by law for which the state is now
seeking to prosecute him. I agree that it is difficult in advance to give a precise and
exhaustive definition of what the question means but after the facts have been either
agreed or proved, and the helpful illustrations given by my noble and learned friends
are taken into account, the tribunal must decide the case by applying the general
principle on which these illustrations are based and whose meaning they elucidate.
LORD HOFFMANN
My Lords,
35. The question in both of these appeals is whether the English law concerning
entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I
have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead
for reaching the same conclusion. I agree with them.
English law on entrapment
36. Entrapment occurs when an agent of the state - usually a law enforcement
officer or a controlled informer - causes someone to commit an offence in order that
he should be prosecuted. I shall in due course have to refine this description but for
the moment it will do. In R v Latif [1996] 1 WLR 104, 112 Lord Steyn said that
English law on the subject was now settled. It may be summarised as follows. First,
entrapment is not a substantive defence in the sense of providing a ground upon which
the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of
entrapment to stay the prosecution on the ground that the integrity of the criminal
justice system would be compromised by allowing the state to punish someone whom
the state itself has caused to transgress. Thirdly, although the court has a discretion
under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence
on the ground that its admission would have an adverse effect on the fairness of the
proceedings, the exclusion of evidence is not an appropriate response to entrapment.
The question is not whether the proceedings would be a fair determination of guilt but
whether they should have been brought at all. I shall briefly enlarge upon these three
points.
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(a) Not a defence
37. The fact that the accused was entrapped is not inconsistent with his having
broken the law. The entrapment will usually have achieved its object in causing him
to do the prohibited act with the necessary guilty intent. So far as I know, the contrary
view is held only in the Federal jurisdiction of the United States. It is unnecessary to
discuss the cogent criticisms which have been made of this doctrine, notably by
Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US
369, because it has never had any support in authority or academic writing in this
country. Indeed, the majority judgment of Rehnquist J in United States v Russell
(1973) 411 US 423, 433, which describes the criticisms as "not devoid of appeal"
suggests that its survival in the Federal jurisdiction owes more to stare decisis and its
perceived constitutional and pragmatic advantages than to its intellectual coherence.
(b) The jurisdiction to stay proceedings
38. The court's assertion of such a jurisdiction is of recent origin. It was not even
discussed as a possible response to entrapment by the Law Commission in its
Criminal Law Report on Defences of General Application (1977) (Law Com No 83),
which dealt with entrapment at pp 32-53. Nor was it mentioned by the House of Lords
in R v Sang [1980] AC 402, when it was decided that the court had no discretion to
exclude evidence on the ground that the offence had been procured by entrapment or
that the evidence had been unfairly obtained. It seems fairly clear, however, that if
anyone had suggested such a jurisdiction, it would have been emphatically rejected.
Lord Diplock dismissed the notion of a discretion to exclude evidence of an offence
procured by entrapment as a "procedural device" to evade the rule that entrapment
was not a substantive defence. He would almost certainly have taken the same view of
a stay of proceedings, as Mason CJ, Deane and Dawson JJ later did in their joint
judgment in Ridgeway v The Queen (1995) 184 CLR 19, 40. The House in Sang's
case said that the only constitutionally proper way in which the court could mark its
disapproval was by admonishing the police (as Lord Goddard CJ had done in
Brannan v Peek [1948] 1 KB 68, 72 and Browning v JWH Watson (Rochester) Ltd
[1953] 1 WLR 1172, 1177) and by imposing a light or nominal sentence. It was for
the police authorities to take disciplinary action or prosecute policeman or informants
who took part in the crime.
39. This disclaimer of court responsibility for convicting a person who was on trial
in consequence of an abuse of state power was not to everyone's taste. The Canadian
Supreme Court, when it came to consider the matter, thought that it was not good
enough. In Amato v The Queen (1982) 69 CCC (2d) 31, 74, Estey J said:
"The repugnance which must be experienced by a court on being implicated in
a process so outrageous and shameful on the part of the State cannot be
dissipated by the registration of a conviction and the imposition afterwards of
even a minimum sentence. To participate in such injustice up to and including
a finding of guilt and then to attempt to undo the harm by the imposition of a
lighter sentence, so far from restoring confidence in the fair administration of
justice, would contribute to the opposite result."
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These views accorded with much of what was said by Frankfurter J in his
dissenting judgment in Sherman v United States (1958) 356 US 369. They were
subsequently elaborated by Lamer J, speaking for the unanimous Supreme Court of
Canada, in R v Mack (1988) 44 CCC (3d) 513. A stay should be granted not because
the accused was not guilty or because he could not receive a fair trial or to discipline
the police but to protect the integrity of the criminal justice system.
40. The case which eventually took English law down the same path was R v
Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, in which the
House of Lords decided that a criminal court had power to inquire into allegations that
the accused had been kidnapped abroad by authorities acting in collusion with the UK
police and, if it found them proved, had a discretionary jurisdiction to stay the
proceedings. Lord Griffiths said that the jurisdiction was necessary to enable the
courts to refuse to countenance behaviour which threatened basic human rights or the
rule of law. The stay is sometimes said to be on the ground that the proceedings are an
abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I
respectfully think, more accurately, as a jurisdiction to prevent abuse of executive
power.
41. It was on the authority of Bennett's case that the House decided in R v Latif
[1996] 1 WLR 104 that in principle a stay could be granted on the grounds of
entrapment. Lord Steyn said, at p 112, that the court should exercise the jurisdiction
when "[w]eighing countervailing considerations of policy and justice", the judge
considers that the bringing of the prosecution "amounts to an affront to the public
conscience." I shall try later to analyse in more detail what this means.
(c) The section 78 discretion
42. The section 78 discretion enables the judge to safeguard the fairness of the trial.
But the entrapped defendant is not ordinarily complaining that the admission of
certain evidence would prejudice the fairness of his trial. He is saying that whatever
the evidence, he should not be tried at all. The appropriate remedy, if any, is therefore
not the exclusion of evidence but a stay of the proceedings. The distinction was
clearly made by the Law Commission in its 1977 Report at para 5.29, by Andrew
Choo in Abuse of Process and Judicial Stays of Criminal Proceedings (1993), pp.
164-166 and by Potter LJ in R v Shannon [2001] 1 WLR 51.
43. On the other hand, if the court is not satisfied that a stay should be granted and
the trial proceeds, the participation of state agents in the commission of the crime may
well be relevant to the exercise of the discretion under section 78. As Potter LJ
pointed out in Shannon's case at p 68, the question at that stage is not whether the
proceedings should have been brought but whether the fairness of the proceedings
will be adversely affected by, for example, admitting the evidence of the agent
provocateur or evidence which is available as a result of his activities.
"So, for instance, if there is good reason to question the credibility of evidence
given by an agent provocateur, or which casts doubt upon the reliability of
other evidence procured by or resulting from his actions, and that question is
not susceptible of being properly or fairly resolved in the course of the
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proceedings from available, admissible and 'untainted' evidence, then the
judge may readily conclude that such evidence should be excluded."
44. This question of whether the proceedings should be stayed on the grounds of
entrapment should logically be decided before the proceedings have begun. But
sometimes proceedings are not conducted entirely logically and an application to
exclude evidence under section 78 may be in substance a belated application for a
stay. If so, it should be treated as such and decided according to the principles
appropriate to the grant of a stay.
The European jurisprudence
45. These appeals raise the question of whether the exercise of the power to stay
proceedings as affirmed in R v Latif [1996] 1 WLR 104 is sufficient to satisfy the
right to a fair trial under Article 6 of the Convention. It is clear from the decisions of
the European Court of Human Rights, which must be taken into account under section
2(1)(a) of the Human Rights Act 1998, that the right is not confined to a fair
determination of the question of guilt. It is also a right not to be tried at all in
circumstances in which this would amount to an abuse of state power.
46. This appears most clearly from the decision in Teixeira de Castro v Portugal
(1998) 28 EHRR 101 in which the court decided that "right from the outset, the
accused was definitively deprived of a fair trial" (see p 116, para 39 of the judgment)
because his conviction was for a drugs offence which had been "instigated" by two
police officers. This is the situation of entrapment in which, in an appropriate case, an
English court would order a stay of proceedings under the principle in Latif case. But
Mr O'Connor, who appeared for Mr Looseley in his appeal and Mr Emmerson, who
appeared for the acquitted person in the Attorney General's reference, both submitted
that the principles upon which the power to order a stay was exercised in England did
not satisfy the requirements of the Convention as stated in de Castro's case. In order
to examine this submission, I must first analyse the current English law and then
consider whether it is consistent with what the European Court has decided.
The application of the entrapment doctrine in England
47. At the highest level of abstraction, the English principles are easy to state. The
court is concerned with whether there has been an abuse of executive power,
something which is, as Lord Steyn said, in Latif's case [1996] 1 WLR 104, 112, an
affront to the public conscience or, as Estey J said in Amato's case (at (1982) 69 CCC
(2d) 31,61), whether the court's participation in such proceedings would bring the
administration of justice into disrepute. But to leave the matter entirely at that level
would incur the criticism, levelled by Lord Diplock in Sang's case [1980] AC 402,
431, that "[w]hat is unfair, what is trickery in the context of the detection and
prevention of crime, are questions which are liable to attract highly subjective
answers" or the reproach of Rehnquist J that the court was claiming a " 'chancellor's
foot' veto over law enforcement practices of which it did not approve": see United
States v Russell (1973) 411 US 423, 435.
48. The objections to entrapment are certainly more specific than a generalised
fastidiousness about police practices. The theme which runs through all discussions of
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the subject is that the state should not instigate the commission of criminal offences in
order to punish them. But what counts for this purpose as instigation? An examination
of the authorities demonstrates, in my opinion, that one cannot isolate any single
factor or devise any formula that will always produce the correct answer. One can
certainly identify a cluster of relevant factors but in the end their relative weight and
importance depends upon the particular facts of the case.
49. Limited assistance can therefore be gained from distinctions which restate the
question rather than provide a criterion for answering it. For example, it has been said
that a policeman or paid informer should not act as an agent provocateur; an
expression used to signify practices employed by foreigners unacquainted with
English notions of decency and fair play: see para 104 of the Report of the Royal
Commission on Police Powers and Procedure (1929) Cmd 3297. But what exactly is
an agent provocateur? The Royal Commission said that he was "a person who entices
another to commit an express breach of the law which he would not otherwise have
committed, and then proceeds or informs against him in respect of such offence." This
is helpful so far as it goes, but one still has to say what amounts to enticing and what
it means to say that the breach of the law would not otherwise have been committed.
In other words, the definition assumes but does not define the standards of decency
and fair play with which the activity of the agent provocateur is contrasted.
Causing and providing an opportunity
50. Many cases place emphasis upon the question of whether the policeman can be
said to have caused the commission of the offence, rather than merely providing an
opportunity for the accused to commit it with a policeman rather than in secrecy with
someone else. There is no doubt that this will usually be a most important factor
deciding whether or not the police have overstepped the line between legitimate crime
detection and unacceptable crime creation. But a note of caution must be sounded.
First, as Lord Steyn said in Latif's case [1996] 1 WLR 104, 111, it is important but not
necessarily decisive. Other factors, some of which I shall mention in a moment, may
have to be taken into account as well. Secondly, a good deal will depend upon what is
accepted as evidence that the accused would have committed the offence with
someone else.
51. A good example of a straightforward application of the distinction between
causing the commission of the offence and providing an opportunity for it to be
committed is the case of Nottingham City Council v Amin [2000] 1 WLR 1071. Mr
Amin owned a taxi which was not licensed to ply for hire in Nottingham. Two plain
clothes policemen who saw him driving down a street in Nottingham in the middle of
the night flagged him down. He stopped and upon request agreed to take them to the
destination which they named. When they arrived, the policemen paid the fare and
then charged him with the offence of plying for hire without a licence.
52. The stipendiary magistrate excluded the evidence of the policemen under
section 78 of the 1984 Act on the ground that they had been agents provocateurs. The
prosecutor appealed. As I have already indicated, I think that the use of section 78
was on any view inappropriate. The accused was not saying that the admission of the
evidence would prejudice the fairness of his trial. His case was that he should not
have been charged with an offence which the policemen had induced him to commit.
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The proper remedy, if any, would have been a stay of proceedings. But the point is
academic because the Court of Appeal treated the case as if it had concerned an
application for a stay and applied the same principles.
53. Lord Bingham of Cornhill CJ observed (at p 1075) that to call the policemen
agents provocateurs was to express the magistrate's conclusion rather than his
reasoning. The question was whether they could properly be so described. This
depended on whether the case fell on one side or the other of a line which Lord
Bingham formulated in the following terms at pp 1076-1077:
"On the one hand it has been recognised as deeply offensive to ordinary
notions of fairness if a defendant were to be convicted and punished for
committing a crime which he only committed because he had been incited,
instigated, persuaded, pressurised or wheedled into committing it by a law
enforcement officer. On the other hand it has been recognised that law
enforcement agencies have a general duty to the public to enforce the law and
it has been regarded as unobjectionable if a law enforcement officer gives a
defendant an opportunity to break the law, of which the defendant freely takes
advantage, in circumstances where it appears that the defendant would have
behaved in the same way if the opportunity had been offered by anyone else."
54. In referring to whether the defendant would have behaved in the same way if
the opportunity had been offered by anyone else, Lord Bingham obviously did not
mean only that the defendant would have responded in the same way to someone who
was not a policeman. Since the defendant in such cases ex hypothesi does not know
that he is dealing with a policeman, such a condition would invariably be satisfied.
What he meant was that the policemen behaved like ordinary members of the public
in flagging the taxi down. They did not wave £50 notes or pretend to be in distress.
55. The test of whether the law enforcement officer behaved like an ordinary
member of the public works well and is likely be decisive in many cases of regulatory
offences committed with ordinary members of the public, such as selling liquor in
unlicensed quantities (Director of Public Prosecutions v Marshall [1988] 3 All ER
683) selling videos to children under age (Ealing London Borough Council v
Woolworths plc [1998] Crim LR 58, DC, and operating a private hire vehicle
without a licence (Taunton Deane Borough Council v Brice (DC unreported 10 July
1997). But ordinary members of the public do not become involved in large scale
drug dealing, conspiracy to rob (R v Mealey and Sheridan (1974) 60 Cr App R 59 or
hiring assassins (R v Gill [1989] Crim LR 358; R v Smurthwaite [1994] All ER 898.
The appropriate standards of behaviour are in such cases rather more problematic.
And even in the case of offences committed with ordinary members of the public,
other factors may require a purely causal test to be modified.
Suspicion and supervision.
56. In the case of some regulatory offences, the effective administration of the law
may require enforcement officers to have the power to make random tests. But
normally it is not considered a legitimate use of police power to provide people not
suspected of being engaged in any criminal activity with the opportunity to commit
crimes. The only proper purpose of police participation is to obtain evidence of
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criminal acts which they suspect someone is about to commit or in which he is
already engaged. It is not to tempt people to commit crimes in order to expose their
bad characters and punish them.
57. This point was made very clearly by Buxton J in Taunton Deane Borough
Council v Brice (DC unreported 10 July 1997) when Mr Brice complained that two
council employees had tempted him to carry them for reward in his unlicensed vehicle
by offering the opportunity of a long and lucrative journey. The judge attached
importance to the fact that the council were carrying out a bona fide investigation into
complaints about Mr Brice's activities:
"That decision [to use entrapment] was not made for an ulterior motive or in
the hope of persuading someone who was not breaking the law to start doing
so, but rather to see whether or not evidence was available upon which a
prosecution could properly be mounted."
58. These facts may be contrasted with the example given by Lamer J in R v Mack
(1988) 44 CCC (3d) 513, 553 of the police officer who "decides that he wants to
increase his performance in court". To this end, he plants a wallet with money in an
obvious location in a park and keeps watch. This is unacceptable behaviour because
the policeman is preying on the weakness of human nature to create crime for an
improper purpose.
59. The principle that the police should prevent and detect crime, not employ
themselves in creating it, requires some modification of the causal test. In the case of
the planted wallet, the policeman has not "incited, instigated, persuaded, pressurised
or wheedled" the hapless offender into stealing it. He has provided him with an
opportunity of which he has taken free advantage. Nevertheless, for a different reason,
the policeman's conduct is an abuse of state power which the judicial branch of
government should not countenance.
60. Closely linked with the question of whether the police were creating or
detecting crime is the supervision of their activities. To allow policemen or controlled
informers to undertake entrapment activities unsupervised carries great danger, not
merely that they will try to improve their performances in court, but of oppression,
extortion and corruption. As we shall see, the European Court in Teixeira de Castro v
Portugal (1998) 28 EHRR 101 attached great importance to the fact that the police
were not acting in the course of an officially authorised investigation.
61. The need for reasonable suspicion and proper supervision are both stressed in
the Undercover Operations Code of Practice issued jointly by all UK police
authorities and HM Customs and Excise in response to the Human Rights Act 1998. It
deals with the employment of "undercover officers", "test purchasers" and "decoys".
Undercover officers are defined as specially trained law enforcement officers working
incognito "under direction in an authorised investigation" to infiltrate an existing
conspiracy, arrest suspected criminals or counter a threat to national security. Test
purchasers are appropriately trained law enforcement officers who seek "by means of
authorised activity, to establish the nature and/or availability of a commodity or
service, the possession, supply or use of which involves an offence". Test purchasers
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are used mainly in the drug trade. Decoys are officers who place themselves passively
in a position to become a victim of crime for the purpose of arresting the offender.
62. Undercover officers may be used only in connection with national security or
serious crime and in cases in which the desired result cannot reasonably be achieved
by other means: see paragraph 2.2. Authorisation must be given by an Assistant Chief
Constable or a Commander in the Metropolitan or City of London Police.
63. The use of a test purchaser must be authorised by a superintendent in the police
or National or Scottish Crime Squads and paragraph 3.2 states that the authorising
officer must be satisfied that a test purchase is "
required in support of an investigation into a criminal offence concerning the
possession, supply or use of a commodity or service and that reasonable
grounds have been established prior to the deployment of a test purchaser to
suspect that such an offence is being committed."
64. The authorising officer must also be satisfied that the desired result of the test
purchase cannot reasonably be achieved by other means and a note for guidance (Note
3A) emphasises that "
Test purchase should not be used as a speculative means of search for the
existence of a commodity or service where no other reasonable grounds exist
to suspect that criminal offences have been or are being committed."
65. The requirement of reasonable suspicion does not necessarily mean that there
must have been suspicion of the particular person who happens to have committed the
offence. The police may, in the course of a bona fide investigation into suspected
criminality, provide an opportunity for the commission of an offence which is taken
by someone to whom no suspicion previously attached. This can happen when a
decoy (human or inanimate) is used in the course of the detection of crime which has
been prevalent in a particular place. Lamer J in R v Mack (1988) 44 CCC (3rd) 513,
553 gave the example of the police planting a handbag in a bus terminal where
numerous thefts have recently taken place. A real example in England was Williams v
Director of Public Prosecutions (1994) 98 Cr App R 209, in which the police were
investigating thefts from vehicles in Essex. They left an unattended Transit van with
the back door open and cartons of cigarettes visible. When the appellants stole the
cigarettes, they were arrested. Although the judgment contains (at p 213) some
reference to causal reasoning ("they were tricked into doing what they wanted to do")
I do not think that in such a case causation provides a sufficient answer. If the trick
had been the individual enterprise of a policeman in an area where such crime was not
suspected to be prevalent, it would have been an abuse of state power. It was justified
because it was an authorised investigation into actual crime and the fact that the
defendants may not have previously been suspected or even thought of offending was
their hard luck.
The nature of the offence
66. The provision in the Code of Practice which requires the authorising officer to
be satisfied that the desired result of deploying an undercover officer or test purchaser
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cannot reasonably be achieved by other means shows that the justification for such
methods will partly depend upon the nature of the offence. Consensual offences such
as dealing in unlawful substances or offences with no immediate victim like bribery
or offences which victims are reluctant to report are the most obvious candidates for
such methods. So is the infiltration of conspiracies. But the fact that the offence is a
serious one is not in itself a sufficient ground for the police to ignore the provisions of
the Code or the courts to condone their actions by allowing the prosecution to
proceed.
Predisposition
67. The United States Federal doctrine that entrapment is a ground for acquittal
does not protect a person who was "predisposed" to commit the offence.
Predisposition is regarded as showing that the defendant had the necessary guilty
intent and was not lured by entrapment into committing an offence which would not
otherwise have occurred to him. Predisposition may be proved by, among other
things, previous convictions or similar fact evidence. The prospect of such matters
going before the jury explains why the defence is rarely invoked in Federal criminal
prosecutions. The result is that people with criminal records are fair game for
entrapment.
68. Since the English doctrine assumes the defendant's guilt and is concerned with
the standards of behaviour of the law enforcement officers, predisposition is irrelevant
to whether a stay should be granted or not. The facts which lead the police to suspect
that crimes are being committed and justify the use of an undercover officer or test
purchaser may also point to the accused and show predisposition. But that is a
coincidence. The fact that, for example, the accused has previous convictions is in
English law neither necessary nor sufficient. Suspicion may attach to a person who
has previously escaped conviction and, contrariwise, the fact that a person has been
previously convicted may provide no ground for suspecting a current course of
criminality which would justify the use of covert operations. Nor is the fact that a
person is a drug addict and therefore likely to know a supplier a sufficient ground in
itself for tempting him to move altogether outside his usual way of life and act as
intermediary in the supply of a substantial quantity of drugs. Such persons may be
particularly vulnerable to unfair pressures of this kind. It may be possible to justify
them for the purpose of securing the prosecution and conviction of the supplier but
not the prosecution and conviction of the intermediary.
Active and passive
69. The need for an authorised and bona fide investigation into suspected
criminality is sufficient to show that the question of entrapment cannot be answered
simply by asking whether the defendant was given an opportunity to commit the
offence of which he freely availed himself. This is important but not enough. The
matter is more complicated and other factors have to be taken into account. Likewise,
I do not think that even the causal question can be answered by a mechanical
application of a distinction between "active" and "passive" conduct on the part of the
undercover policeman or informer. In cases in which the offence involves a purchase
of goods or services, like liquor or videotapes or a taxi ride, it would be absurd to
expect the test purchaser to wait silently for an offer. He will do what an ordinary
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purchaser would do. Drug dealers can be expected to show some wariness about
dealing with a stranger who might be a policeman or informer and therefore some
protective colour in dress or manner as well as a certain degree of persistence may be
necessary to achieve the objective. And it is been said that undercover officers who
infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain
concealed unless they showed some enthusiasm for the enterprise. A good deal of
active behaviour in the course of an authorised operation may therefore be acceptable
without crossing the boundary between causing the offence to be committed and
providing an opportunity for the defendant to commit it.
70. Likewise it seems to me that when Lord Bingham in Amin's case [2000] 1 WLR
1071, 1077, said that the accused should not be "incited, instigated, persuaded,
pressurised or wheedled" into committing the offence, he was not intending each of
those verbs to be given a disjunctive and technical meaning. He was intending to
evoke a more general concept of conduct which causes the defendant to commit the
offence as opposed to giving him an opportunity to do so. No doubt a test purchaser
who asks someone to sell him a drug is counselling and procuring, perhaps inciting,
the commission of an offence. Furthermore, he has no statutory defence to a
prosecution. But the fact that his actions are technically unlawful is not regarded in
English law as a ground for treating them as an abuse of power: see R v Latif [1996] 1
WLR 104 and compare Ridgeway v The Queen 184 CLR 19.
71. In summary, therefore, the principles of English law on which a stay of
proceedings may be granted on grounds of entrapment involve the consideration of a
number of aspects of the behaviour of the law enforcement authorities, some of which
I have examined in detail, and deciding whether the involvement of the court in the
conviction of a defendant who had been subjected to such behaviour would
compromise the integrity of the judicial system.
Teixeira de Castro v Portugal
72. My Lords, these principles are in my opinion entirely consistent with the
decision of the European Court of Human Rights in de Castro's case 28 EHRR 101.
Both the commission and the court stressed the fact that the policemen, although not
acting unlawfully, were not authorised to use undercover operations. Unlike the case
of Lüdi v Switzerland (1992) 15 EHRR 173, no investigation had been opened by a
judge and there was no judicial or other supervision of the officers. Although the
United Kingdom technique for authorising and supervising such operations (as
described in the Code of Practice) is very different from the judicial supervision in
continental countries, the purpose is the same, namely to remove the risk of extortion,
corruption or abuse of power by policemen operating without proper supervision. The
European Court obviously had these risks very much in mind when it condemned the
methods used to prosecute Mr de Castro.
73. The court also recorded that the "competent authorities", that is to say, the
authorities who would normally be expected to authorise such an investigation, had
no good reason to suspect that Mr de Castro was a drug trafficker. Nor had the police
themselves heard of him until an intermediary told them that he was a person who
might be able to supply heroin. They immediately drove to his house in the middle of
the night, said that they wanted to buy 200,000 escudos worth of heroin and produced
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a roll of banknotes. Mr de Castro obtained the heroin from an intermediary and, apart
from the intermediary's suggestion that he might be able to supply, there was no other
evidence that he had been dealing in heroin.
74. My Lords, every case depends upon its own facts but there is nothing in the
general principle applied by the European court or the cluster of factors to which it
attached importance which suggests any difference from the current English approach
to entrapment. The contrary submission depends upon an excessively literal and
technical analysis of some of the language used by the court. So for example, the
court said (at p 116, para 38) of the judgement that "
The two police officers did not confine themselves to investigating Mr
Teixeira de Castro's criminal activity in an essentially passive manner, but
exercised an influence such as to incite the commission of the offence".
75. This sentence is relied upon for the proposition that even in an authorised
undercover operation, the officer must take no active step such as offering to buy an
illegal substance. Such conduct amounts to "incitement" of the offence. I do not
believe that the court intended to lay down such a rigid and prescriptive rule. The
description of the policemen's conduct must be seen as one of the various factors
which led to the court's conclusion that there had been an abuse of police power
which denied the defendant a fair trial
The certified questions
76. This brings me to the certified questions in the two appeals before the House.
First, R v Loosely, in which the certified question was:
"Should the judge have refused to admit the evidence of the undercover police
officer "Rob" because the role played by "Rob" went beyond observation and
involved asking the appellant to supply him with heroin, a request to which,
on the judge's findings, the appellant readily agreed."
77. The facts of the case are stated in the speech of my noble and learned friend,
Lord Hutton, and I need not repeat them. The factors to which I attach importance are
the following. First, Rob was acting in the course of an authorised undercover
operation arising out of concern about the supply of Class A drugs in the Guilford
area. Secondly, the Wooden Bridge public house was reasonably suspected to be a
focal point for the trade. Thirdly, having obtained the defendant's telephone number
from
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