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Published: Fri, 12 Oct 2018

Case study: Entrapment in criminal law

There are two main issues raised by the question. These are 1) the admissibility of prosecution evidence and 2) the level of burden placed on Tom under the defence specified in S28(2) of the Misuse of Drugs Act 1971[1]. When the police officer‘s called at Tom’s house they were in plain clothes and did not identify themselves. Therefore Tom will have been deprived of his rights under the police codes of practice. On the facts it appears there may be breaches of the codes B and C of the Police and Criminal evidence Act 1984 and Article 8 of the European Convention of Human Rights[2]. If the circumstances in which the evidence gathered against Tom was in a manner that the admission of it would have such an adverse effect on the fairness of the proceedings the Judge has the discretion to refuse to admit the evidence under S78 of P.A.C.E 1984.

Originally it was thought the exclusionary rules under S78 of P.A.C.E 1984 related to the exclusionary power under common law defined in R v Sang[3], this was restricted to confession and illegally obtained evidence after the commission of the offence. However, in R v Mason[4] it was decided the scope of S78 extends to all the evidence that the prosecution proposes to rely upon. If the police adopt an undercover pose or a disguise to enable them to ask questions uninhibited the matter will be open to t an application by the accused under S78 (R v Christou[5]). Although, it must be noted the principle express in R v P[6] that a breach of P.A.C.E or the E.C.H.R will not automatically result in the evidence being excluded.

The House of Lords set out considerations for an application under S78 P.A.C.E regarding undercover operation and entrapment in R v Looseley and Attorney-General Reference [7].These are, did the police do no more than present an opportunity for the defendant to commit a crime, were the officers acting in good faith, was there reasonable suspicion, is there a good reason to question the evidence given by an agent provocateur and is the evidence untainted and reliable.

Tom would have been keeping the plants for his friend regardless of the police intervention but the lack of police procedure may render some of the evidence gathered at Tom’s residence tainted and unreliable. Tom will bear an evidential burden in order to raise the issue under S78 P.A.C.E 1984. The evidential burden had been defined by Lord Devilin in Jayasensa v R[8] as the obligation on a party to adduce sufficient evidence, if believed and left un-contradicted, would justify as a possibility a finding by the jury in favour of the party bearing the burden. Whether Tom has discharged the evidential burden placed on him will be decide once the trial has begun by the tribunal of law (judge) rather than the tribunal of fact (jury).

If Tom discharges the evidential burden a legal burden will be place on the prosecution to prove that the circumstance in which the evidence against Tom would not adversely effect the fairness of the trial beyond a reasonable doubt. The standard required to satisfy the level of beyond a reasonable doubt is described in Miller v Minister of Pensions[9]. Lord Denning stated if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed, the case is proved beyond reasonable doubt. Further guidance has been issued by the judicial studies board under specimen direction 2 , if after considering all the evidence you are sure that the defendant is guilty, you must return the verdict of guilty, if you are not sure, you verdict must be not guilty.

The next question is what burden will Tom bear and what standard of proof will be required for Tom to sustain his defence that he had no knowledge that the pot plants he was keeping and selling for his friend were indeed cannabis. The general rule known as the golden thread theory is that an individual is innocent until proven guilty. Therefore, it is the duty prosecution to prove the accused guilt as stated in DPP v Woolmington[10]. However, Lord Sankey in Woolmington recognised there are exceptions to the rule such the defence of insanity, express and implied reverse burdens. In R v Carr-Briand [11] it has been establishes that in incidences in which the accused bears the legal burden the standard imposed would be that of the balance of probabilities. Lord Denning’s classic definition of the balance of probabilities in Miller[12], is evidence that is such that the tribunal can say we think it more probable than not.

The offence Tom has allegedly committed under the Misuse of Drugs Act 1971 S 6 is subject to the defence specified in S28 (2) [13] .Under S101 of the Magistrates Court Act 1980, formally S81 of the Magistrates Court Act 1952, if a defendant relies on a defence or proviso or qualification in the statute there is an implied reverse burden on the accused. The Magistrates Court Act is applicable only to summary trial but similar common law principles apply to indictable trials as decided by the Court of Appeal in R v Edwards[14] and confirmed by the House of Lords in R v Hunt[15]. Tom will therefore bear a reverse onus burden to prove the defence under S28 of the M.D.A 1971.

Since the enactment of the European Convention of Human rights through virtue of the Human Rights Act 1998 the decision in Lambert has been reviewed in the House of Lords on the question of compatibility with the HRA. In R v Lambert[16] concerning a charge of possession of class A drugs, initially the court directed that the prosecution had the burden of proving and that the accused had class A drugs in his possession and that the defendant was to prove on a balance of probabilities that he had no knowledge of the drugs in his possession. The Lords decided that S28 was not compatible with Article 6(2)[17] of the European Convention of Human Rights and that under s3 of the Human Rights Act the legal burden placed on the accused under S28 of the Misuse of Drugs Act should be read down to impose an evidential burden. In the judgement Lord Styne had examined if the legislation had interfered with the Article 6 of the ECHR and the need for legislative inference whether it was greater than necessary. It was also considered that the prosecution position is strengthen by the possibility of adverse inferences can be derived by the defendant’s failure to mention a fact relied upon when questioned under S34 of the Criminal Justice and Criminal Evidence Act 1994.

In the leading case regarding reverse onus burdens Attorney-General’s Reference No4[18] Lord Bingham set out the following considerations; The defendants has a right to a fair trial but it is not an absolute right, the ECHR requirements of striking a balance between an individual’s right an the communities interests, there must be a compelling reason for a reverse onus burden to e borne by the defendant, the seriousness of the punishment, extent of factual matter required to be proved by the defendant and the ability of the defendant to prove these matters.

Tom will bear a reverse onus burden to prove that he did not know that the plants that he was selling for his friend were cannabis. However, it would not be easy for Tom to produce the friend he was selling the plants on behalf of and the penalty could range from a low level fine or a starting point of 12 weeks custody/ medium level fine or three years imprisonment depending on the amount of plants cultivated. Therefore the standard imposed is likely to be of an evidential burden only to adduce some evidence. The prosecution will automatically have the legal burden of proving to the standard of beyond a reasonable doubt that Tom knew the type of plants he was cultivating in his kitchen and offering for sale along side the fact that the plants were indeed of the genus cannabis

Prior to the enactment of the European Convention of Human Rights by the Human Rights Act 1998 there had been different interpretation of S101 of the Magistrates Court Act. In Edwards LJ Lawton laid down a formula the if the true construction of the enactment prohibits the doing of acts subject to a defence, proviso or qualification then the prosecution can rely on the exception that there is a reverse onus burden on the accused. In Hunt the Edwards principle was assumed by the court. On appeal the House of Lords decided that Edward was decided correctly but the facts of the case did not fall within Lawton’s formula as the nature of the offence was not just regulatory but was concerned with a negative precondition of knowledge the prosecution could not rely on the exception to establish guilt.



Cross on Evidence 8th Edition Butterworths

Adrian Keane The Modern Law of Evidence 5th Edition Oxford

Phlpson on Evidence 16th Edition Sweet and Maxwell



[1] It shall be a defence for the accused to prove that he neither knew or suspected…….was the particular controlled drug

[2] The right respect for private and family life

[3] [1980] AC 402

[4] [1988] 1 WLR 139

[5] [1992] QB 979 CA

[6] [2002] 1 AC 46

[7] [No 3 of 2000) [2001] 1 WLR 2060, HL

[8] [1970] AC 386 HL

[9] [1947] 2 ALL ER 372

[10][1935] AC 462 at 481-2,

[11] [1943] KB 607

[12] As per 9

[13]As per1

[14] [1975] QB 27

[15] [1987] AC 352

[16][2001] 3 ALL ER 547

[17] The right to a fair trial

[18] [No4 of 2002] [2005] 1AC 264

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