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Published: Fri, 02 Feb 2018
Criminal Law Defendant
There is a general recognition of human weakness in criminal law. Special defences are accorded in some areas such as the reduction from murder to manslaughter, circumstances of duress where an offender is overborne by threats of another, and the commission of an offence at the suggestion or assistance of others. So what of a defendant who has been coaxed into committing a crime that he would not have ordinarily committed, by an agent of the law?
It was established in the 1970’s landmark case of R v Sang that entrapment was not a recognised defence in English Law, and the means through which evidence was obtained was not a matter for the court. Since this decision, the rather murky area of law has developed substantially, in favour of the defendant. Lord Nicholls asserted in a more recent landmark decision that
…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.
He continued, adding that “the role of the courts is to stand between the state and its citizens and make sure that this does not happen.” It has been subsequently understood that where a court finds entrapment, the appropriate action is to intervene either through exclusion of evidence or a stay of proceedings if “the conduct of the police…was so seriously improper as to bring the administration of justice into disrepute.”
Quite broadly speaking, the majority of society has the capacity to independently choose to commit or not commit crime. The question that lies at the very root of the ‘problem with entrapment’ and evokes substantive scrutiny is the extent to which this statement is true. However law-abiding a citizen may be, in extraneous circumstances most people would be surprised at how submissive and vulnerable human nature is to the temptation. For this very reason, honest members of society must be protected from the legally invisible, deceptive practices of the law enforcement agencies.
There is a mutual understanding however that some forms of ‘proactive policing’ are acceptable and necessary as law enforcement tools. The twentieth Century saw increasing trends in respect of covert policing and proactive investigation, which Andrew Ashworth would argue is merely part of a wider movement from ‘coercion to deception’ during investigatory stages. This has been the result of an emphasis on “intelligence-led” policing, and a greater reliance on undercover agents. Although these policing strategies have proved many times to be an efficient technique of investigating crime, they bring with them many consequential problems. It is the fundamental essence of law enforcement agencies to protect and prevent crime, for the safety of the remainder of society. It is when this line is crossed, into the realms of actually ‘creating’ crimes, that this method can be highly problematic, particularly for the courts. The problem is not even necessarily that law enforcement officials ignore or circumvent existing legal constraints, but rather that the permissive nature and structure of these laws tolerate a wide range of police impropriety.
In recent years, there have been efforts to design efficacious guidelines in respect of pre-trial process malpractice and fairness of proceedings in both our jurisdiction and others internationally, through common law. This has proven to be quite straining and as each case tends to turn on its own particular facts, it is difficult to tailor a precedent to meet all requirements in such a controversial area of law. The courts are forced to make largely unarticulated departures from fundamental principles ordinarily adopted. They attempt to assess the culpability of a defendant by judging their criminality, background, lifestyle and environment and the opportunities normally presented to them. In doing this, they are able to decide whether the police have enticed an unsuspecting, honest citizen into committing a crime, or merely presented an existing criminal with an unexceptional opportunity to do what he would have done anyway. Is any form of entrapment ‘fair’? What techniques do the courts exhaust before deciding whether a defendant has been subject to an abuse of process? How efficient are those techniques? To what extent is entrapment needed in a democratic society? These are questions which play on the minds of many academics and scholars, who attempt to evaluate an area of law that is riddled with controversy and open questions. Here is another endeavour…
Chapter 1- Admissibility: The elusive definition
Admissibility is a recurring theme throughout. Before exploring the issues and controversies that encircle the doctrine of entrapment, it may be interesting to look more broadly at admissibility and how the courts’ attitudes have changed over time. By doing this one is able to understand how the courts have dealt with the matter as a whole, and a comprehension of the difficulties that the courts are faced with now when adducing the necessity or prejudice of evidence. It is easier then to see how the general rules established have affected the admissibility of evidence relating to entrapment, and how their Lordships have reached recent decisions based on this.
In order for the courts to find entrapment and exclude any unfairly obtained evidence or even stay the proceedings, they are compelled to exercise the discretionary powers bestowed upon them to decide whether the evidence ought to be admitted. This has not always been as straight-forward as it may sound, and even to date the courts are frequently confronted with difficulties as to how to interpret the discretion in a given situation. Many scholars and academics have asserted for years that the guidelines provided for the admissibility of evidence in court are somewhat nebulous and can occasion injustice through wide judicial interpretation. Over the past 50 years, there has been a transition from a time when the criminal courts had only modest discretionary powers to present day where it would appear that section 78(1) of the Police and Criminal Evidence Act 1984 has meant that it is now a focal point of many trials. Has this piece of legislation managed to accomplish what its drafters had envisaged or has it contributed to an ever- hazier law on the admissibility of evidence?
A Brief History:
Two steps forward, two steps back.
Historically the courts adopted a stringent approach to admissibility whereby the exclusion of evidence was not considered an issue, and the method of obtaining said evidence was largely irrelevant. Traditionally, under English Common law, it has always been understood that for as long as the evidence was relevant to the issue in question, it was admissible. This meant that even evidence that had been stolen or obtained by an illegal search was regarded as admissible. In 1955, Lord Goddard rejected any contentions that illegally obtained evidence should be inadmissible claiming that “the court is not concerned with how the evidence is obtained.”
This rationale had remained until it was confronted by the courts during the mid-twentieth Century. They had finally realised a need to maintain integrity of the criminal process, and soften technical rules that may create injustice if adhered to so rigidly. In the quite isolated cases of Kuruma v R and Noor Mohammed v The King it was recognised that evidence obtained through trickery could be excluded, and that the question of whether or not to admit similar fact evidence “should be left to the discretion and sense of the fairness of the judge.” These strands of authorities were brought together in the House of Lords case R v Selvey in which Viscount Dilhorne famously declared that in light of what was said by judges of such eminence, it was too late to say anything other than “the existence of such a discretion is now clearly established.”
Just when it seemed that a fairer, more subjective approach was being adopted, the progression took a rather prominent blow, when in 1979 the Court of Appeal asserted in R v Sang that they failed to see any warrant or reason in light of previous authority, for the exclusion of probative and relevant evidence on the grounds that it was attained through the deceptive practice of entrapment. Critics were disappointed by this outcome, highlighting that there was a need for clarification as to the scope of the principle. Lord Scarman did acknowledge this, yet the five diverse and quite confusing speeches provided a less than satisfactory answer. Despite their lack of clarification however, they accepted that a judge has always had the discretion to rule out evidence that he believes the prejudice it invokes outweighs its probative value, yet this was purely obiter. Unfortunately, in reference to the exclusion on any other grounds their Lordships stated:
Save with regard to admissions and confessions…and evidence obtained from the accused after the commission of the offence, there is no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.
The House of Lords drew the progression of the scope of the law on admissibility to a halt. The outcome was subsequently criticised for its lack of clarity and its restricting precedent. An opposing disquiet of public policy argument lead shortly after to a reaction from parliament. They saw the need to intervene and lay down some guidelines to avoid any future miscarriages of justice or confusion. The reaction was the Police and Criminal Evidence Act 1984.
PACE 1984: an explicit reversal of Sang?
Described as the most far-reaching section of the 1984 Act, Section 78(1) of PACE provided that:
The court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, 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.
Its perhaps deliberately obscure design has not gone uncriticised by academics who have argued that ‘There is nothing in section 78 to suggest that any wider concept of fairness or propriety is relevant, and there is certainly nothing in it to suggest the disciplining of the police has become a valid consideration.’ This may be argued that it was most probably worded as such in the absence of any way of anticipating how the courts would apply it. Even the courts themselves were initially slightly perplexed until the Court of Appeal in R v Fullingestablished that PACE is a codifying Act and that the courts need not be influenced by the stance of previous law and are to take the provisions as enacted.
Section 78’s defects
It’s unconstrained breadth and it’s ambiguity over whom it is to protect has unearthed difficulties in proceedings. It could be argued that the principles that were developing prior to the enactment would have over time been able to give more specific guidelines as to what circumstances the discretion should be exercised in, and that the enactment of PACE had left it broader than it would have ever been if left to its own devices. Thus two main fundamental flaws are in question: is the discretion too open to be effective; and whose interest is it aimed to protect?
Ormerod argues that the courts should have been presented with a more structured statutory offering, not something so broad in its aim that it leaves the judges “to engage in spurious balancing exercises which are potentially nonsensical.” He believes that it requires clarity and transparency as to the purpose of the discretion and that the courts might benefit from a more structured guidance.
Section 78’s ambiguity with regards to meaning of ‘fairness’, and to whom this fairness is directed is open to criticism. ‘Fairness’ is a rather indefinite word which the judiciary may manipulate to signify whatever pleases them. This alone is guaranteed to be problematic as one person’s perception of fairness will always be, in essence different from the next. Moreover, is it ‘trial fairness’ or ‘Article 6 fairness’?
Simon Bronitt conceded that “the disciplinary potential of s. 78 is further weakened by the minimal significance attached by the courts to alleged human rights violations” In the case of R v Khan (Sultan)their Lordships placed relevance upon general ‘principles’ provided by the ECHR and acknowledged that ‘if evidence has been obtained in circumstances which involve an apparent breach of Article 8 … that is a matter which may be relevant to the exercise of the s. 78 power’. This would surely encourage confidence that human rights would then be better protected in the presence of such ECHR legislation, but upon closer inspection there is little evidence that this is indeed the case. When according weight to any human rights violation, the House first appears to consider the extent to which the right is protected under domestic law.
Their Lordships held in the aforementioned case expressed difficulty in applying the European law to domestic law. They stated that the imposition and expectation placed upon English Judges to do so would be ‘inappropriate’, and subsequently only limited weight could be accorded to such violations in situations whereby:
“The behaviour of the police amounts to an apparent breach of some relevant law or convention, common sense dictates that is simply a consideration which may be taken into account for what it is worth. Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity, as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings.”
Consequently, as Bronitt argues, a violation of this calibre would only ‘tip the balance’ and the admissibility of evidence obtained through an interference of privacy would not be likely to prejudice the defendant’s Article 6 right. However, the rather eminent case of Teixeira de Castro v Portugal (1998) was an outright challenge to this rationale, and after exhausting legal remedies in English Law, the case was referred to the ECHR for a ruling. New standards were then imposed, which served to extend the right to fairness to include ‘pre-trial process’. The courts are to from then on read domestic law in light of ECHR law in accordance with the Human Rights Act 1998. This, however will still continue to evoke inconsistency as it has already been established that ‘fairness’ is quite an irresolute concept. Consequently, adherence to ‘section 78 fairness’ could arguably mean that the courts believe that in doing this they have satisfied Article 6 trial fairness, without even adopting a rights-based approach to the exclusion.
Lord Hutton argues that he does not ‘discern any appreciable difference between the requirements of Article 6 and English law (with regards to abuse of process) as it has developed in recent years.’ This idea is further supported by Simon McKay who describes the relationship between the two as ‘symbiotic’, believing that there is evidence in more recent cases which illustrates an influence of the convention on English law, and that the convention readily fits into both civilian and common law systems. He stated that ‘Section 78 may achieve fairness in the proceedings but it may not. The operation of the doctrine of abuse of process fits more closely with the tactile nature of Article 6 rights and obligations.’
It is relatively safe to say that parliament’s endeavour to tidy up an area of law in disrepute, in respect of section 78, has really achieved little more than common law had or would have. However, it would only be fair to acknowledge that as general as they are, they are a good statutory foundation upon which more efficient guidelines will develop with time, exercise and an increase in pre-trial regulation, particularly in conjunction with the 1998 ECHR human rights intervention. The extent to which the problem with entrapment is resolved, if at all, can be illustrated by exploring developments since the enactment of PACE.
Post Sang and the gradual development of a sounder doctrine.
Sang undoubtedly stands out as the most eminent entrapment case of its time. As previously discussed, back in 1979 it hindered the progression of the law of admissibility, just as it was gaining momentum. The core principle was that ‘entrapment’ was not something recognised in English Law and that the way in which evidence was obtained was not a matter for the courts to deal with and was quite irrelevant. Since the decision, the permissibility of certain policing techniques and deceptive practices has been scrutinised by this jurisdiction and indeed by others. Since the enactment of the Police and Criminal Evidence Act in 1984, the courts have been more willing to consider entrapment as a plausible basis for the exclusion of evidence, although despite this willing, they have not readily laid down clear rules, maintaining that ‘every individual case turns on its own facts’.
The doctrine was to develop over the next 15 years or more into what are now seen as the contemporary landmark cases of R v Looseley; Attorney-General’s Reference (no 3 of 2000), two cases of similar facts which were heard at the same trial and given the same judgement. The fundamental difference between the two cases is based on the defendant merely being ‘presented with an opportunity’ to commit a crime, as in Looseley, and the defendant being ‘incited’ or ‘caused’ to commit a crime, as in the latter. Before one can accord these cases and indeed essentially these phrases the exploration that they demand, it is important to acquaint oneself with the facts of a string of case law that emerged post-PACE on which both Looseley and Attorney-General’s Reference were built.
The case of R v Latif and Shazhad involved two drug traffickers from Pakistan. With the help of an undercover customs officer, who provided them with a visa, they proceeded to import £3.2 million worth of heroin into the UK. It was held that there was no abuse of process on behalf of the under cover officer, and that although it was considered that the operation would not have been carried out how it did, their Lordships maintained that the defendants were not enticed into committing a crime that they would not have otherwise committed. Their appeal was dismissed. However, in the case of Teixeira de Castro v Portugal, undercover police officers confronted a well known drug trafficker enquiring about hashish. When the defendant informed them that he was unable to meet their demand, they requested a large amount of heroin instead. The defendant put them in contact with someone who would have been able to help them. Upon meeting him, the police officers arrested him and the defendant. It was held that the police officers crossed the boundaries into entrapment, since without their intervention that particular crime would never have occasioned, and it was considered a breach of Article 6.
In the case of Nottingham City Council v Amin a cab driver was convicted for driving outside of the scope of his licence when he picked up two undercover police officers who hailed him down in the manner of any other member of the public. The courts held that the admission of the officers’ evidence would not amount to prejudice as no pressure was exerted upon the defendant to commit the crime. Similarly to this, the defendants in R v Williams and O’ Hare were convicted for robbing a van that had been strategically placed and left open. It was held that the evidence was admissible and that the officers’ actions did not amount to entrapment on the grounds that there had been no communication with the criminals andthey had not set out to catch any particular thieves. Equally, in the case of R v Smurthwaite and Gill it was held that the evidence obtained by undercover police officers posing as contract killers did not amount to entrapment as the officers involved had acted passively and did not instigate the crime.
That considered, it appears that the general consensus is that if the courts find that the defendant was ‘lured’, ‘enticed’, ‘caused’, ‘instigated’ or ‘incited’ by the police, then it will lead to a stay of the proceedings to circumvent the possibility of procedural unfairness or prejudice on the behalf of the defendant. The concept, as straight-forward as it seems is in actual fact far from that. As their Lordships assert, every case turns on its own facts and the issue as to whether the defendant has been ‘caused’ to commit a given act will depend on a catalogue of factors. However, a general route has emerged whereby the courts ask themselves the same questions from case to case to assess the degree to which a defendant has been ‘caused’ to commit a crime. They place a great importance upon whether the police have ‘shifted’ an opportunity into an environment where it would not normally be available, or upon a person who would not normally be presented with that opportunity. The next chapter endeavours to delve into the intricacies of the courts’ efforts to ensure fairness in a trial and the factors that they take into consideration in the process.
It was established in Looseley that it is fundamentally wrong to ‘cause’ an individual to commit a crime in order to punish them. This simply is not the role of the police, or the judiciary. In the same vein however, it is comprehendible that some acts carried out by the police to catch criminals ought to remain acceptable. However it is the extent to which this is acceptable that is the root of the problem. The underlying issue is where do the courts draw the line between ‘acceptable pro-active policing’ and merely ‘preying on the weakness of human nature’ and how do they conclude that a defendant has been ‘caused’ to commit a crime?
The courts have asserted that there is a fundamental difference between merely presenting someone with an opportunity to commit a crime and presenting them with an exceptional opportunity that they would never normally be presented with. Lord Nicholls believes that the injustice in the latter is ‘obvious’. But to what is extent is this really obvious and on what grounds do they make this assertion? The distinction is highly problematic and of a very subjective nature.
It is understood that to condone this malpractice would be to undermine the ‘dignity and integrity of the justice system’ and damage public confidence in the judiciary.
The integral issue at hand then concerns the actions of the police and whether their conduct “…was so improper so as to bring the administration into disrepute.” Therefore, the concentration appears to be upon the police. Yet the difficulty in this is that in order to gauge the degree of misconduct on part of the police it would seem that the courts have to make a departure from the common principles of criminal law in assessing the culpability of a criminal, which would normally rest upon the defendant’s mens rea at the time of the crime. No consideration is usually accorded to the defendant’s character, background or social environment. However, in order to determine whether the opportunity placed before them is ‘exceptional’, they would need to find first what would be viewed as ‘unexceptional’ or vice versa. To reach this conclusion they are compelled to assess the defendant’s character and social environment and how reasonable it would be to expect him to willingly engage in criminal activity presented to him by the police. Squires points out that this is quite a diversion from the usual approach taken in other proceedings which are stayed, presenting an example whereby a defendant is kidnapped and brought into the jurisdiction to avoid extradition rules. This would not require any consideration of culpability or characteristics and so forth, of the defendant. Entrapment therefore, is very different to other areas of the law. To see quite how, it is necessary to examine in depth how the courts determine entrapment and what essential elements and requirements need to be fulfilled before they establish whether a defendant has been ‘entrapped’.
Ashworth believes that the courts use fairly ‘unspecific’ methods when determining entrapment. In order to assess the doctrine, it is necessary to explore the methods used in Looseley and the cases upon which its judgement was built. It becomes apparent that there tends to be around three or four main, seemingly similar yet not identical criteria which determine entrapment; Would the defendant have committed the crime in question if it were not for police involvement; Was the defendant ‘lured’, ‘incited’ to commit the crime; and is the defendant considered a ‘criminal’ or ‘an unwary innocent’?. If any of these questions may be answered in the affirmative then it would be prudent to say that the defendant was not ‘entrapped’.
How did their Lordships arrive at their decisions and what factors did they take into account when finally establishing the more ‘explicit rationale in Looseley?’
Would the defendant have committed the crime in question without the interference of a state official?
One would be forgiven for asserting that this is almost impossible to answer accurately as it would require a personal understanding of the defendant, something that the courts quite obviously do not have. Yet as the pivotal core of entrapment it is something that they must endeavour to reveal. An easier way to approach this is to ask; did the police ‘cause’ the crime or did they merely ‘present him with an opportunity?’ In other words, did he commit a crime that he would not have ‘otherwise’ committed?
Their Lordships in Looseley decided that the most important determinant was whether the police could be said to have engaged in ‘unacceptable crime creation…rather than merely providing an opportunity for the accused to commit it [the crime] with a policeman rather than in secrecy with someone else.’ Therefore the issue at hand is not whether the accused would have committed that exact crime, but more rather would he have still committed the same offence in the absence of encouragement of the police. They held that the defendant would have sold heroin to anyone, had it been the undercover police officer or not and he was subsequently not entrapped. However, in the adjoining case of Attorney Generals Reference (No 3 of 2000) it was held that the defendant would not have been likely to engage in the sale of heroin had it not been for the police officer’s interference. In the case, the defendant had been supplying the under cover police officer with contraband cigarettes. The officer then pushed for him to supply them with a class A drug. He supplied them with it, but the courts asserted that it was more on a basis of ‘a favour for a favour’ and not because he is usually surrounded by a drug culture or by any means involved in the sale of class A drugs, and was held to have been entrapped.
Was it likely then, in the case of Williams and O’Hare that the defendants would have stolen cigarettes from any van, not just from the one that the police had deliberately placed? Or perhaps in Amin, could it be said that the defendant would have picked up anyone, not just the police officers from an area in which he was not licensed to do so? The answer could be little far from ‘yes’. The defendants had no knowledge of the status of the undercover police officers. As far as the defendants in Williams were concerned, the van that they had stolen attractive goods from could have been any other van, and in Amin‘s case, as far as he was aware he was just picking up any member of the public. The key determinant in cases such as these is the importance placed upon the police officer’s conduct as a regular member of the public. Provided that the undercover officer does not act any different to how another person would in a given situation, the courts would not find that they ‘caused’ the crime. In Looseley their Lordships found nothing wrong ‘manna from heaven’ strategies such as in Williams. They further set out that operations such as in Smurthwaite and Gill are permissible when the police act in a way similar to how anyone else would. But how many members of the police force could accurately imitate an assassin? Their Lordships decided that so long as the police officers merely ‘played along’ with the defendants purely to maintain their covert identity, it could be said that the defendant’s ‘caused’ the crime and not the police officers.
For the courts to find entrapment when it can be said that the police acted as normally as any other member of the public, they would need to be able to say that the opportunity presented to the defendant was ‘exceptional’. The courts in Looseley asked whether the defendant himself would normally be subject to such temptations. For instance, in the case of Latif, how reasonable would it be to say that he would normally be confronted with the opportunity to sell £3.2 million worth of heroin? Certainly most would agree that it would be plausible to say that the majority of people would not have the resources, contacts or moral fibre to carry out a crime of this calibre. This is why the courts have adopted a much more subjective approach. If they were to gauge how ‘exceptional’ circumstances were to the average person, it would preclude the police from carrying out most proactive operations. Instead they look into whether the defendant themselves would normally be presented with such an opportunity given their lifestyle and background.
Could it then be said that Looseley would usually be telephoned by a stranger and asked for a small quantity of heroin for £30? The courts held that the opportunity presented to him was not ‘unexceptional’ for him personally and the decision is described by many as uncontroversial. Looseley was a known drug dealer and he was not being given an opportunity to carry out an act that he would normally never consider. On the other hand, how reasonable would it be to say that the defendant in Attorney-General’s Reference is normally put in situations in which he feels indebted to provide someone with heroin? Despite the absence of evidence to say that those who deal in cut-price cigarettes are not normally involved with the sale of drugs, it was held to be highly unlikely and the courts drew a comparison between the cases, asserting that it was crucial that Looseley was ‘steeped in the drug culture…and deeply involved in the drugs scene.’ It was because of this that it was held that the defendant in Attorney-General’s Reference was not entrapped.
Referring back to Latif, who was described as ‘an organiser of the heroin trade’it is acceptable to infer that the opportunity placed before him merely replicated those that frequent him. What if the facts of this case are somewhat altered? Originally, the defendant was approached by an undercover official to import a very large quantity of heroin from Pakistan into the UK. He was not held to have been entrapped in doing so as it was something that he would have done on another occasion. What if the individual that was approached was not an ‘organ
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