Is the law relating to admissibility of evidence obtained by entrapment in a satisfactory state now?
The mere fact that evidence is relevant does not guarantee its admissibility. At common law it was long established that trial judges enjoy a general discretion to order the exclusion of technically admissible evidence if they feel that its prejudicial effect exceeds its probative value (see e.g., Christie  AC 545). In Sang  AC 402 the House of Lords unanimously held that in order to fulfil the overarching duty to ensure that an accused receives a fair trial a trial judge may refuse to admit technically relevant evidence.
S 78 PACE 1984 expressly preserves the common law discretion. The statutory provision however permits a court to exclude improperly obtained evidence. Potter LJ in Hardwicke  All ER (D) 1776 acknowledged that in cases where a party applies to have evidence excluded under s 78 on the ground that he was entrapped, although the principal focus of the court will be the procedural fairness of the proceedings, the opportunity the defendant has had to deal with the prosecution evidence and the reliability of the Crown evidence, the court will also take into account the facts and circumstances of the entrapment. Thus, if there was a good reason to doubt the credibility of the agent provocateur and these doubts were not susceptible to being properly or fairly resolved in the course of the proceedings from available admissible, untainted evidence, the judge would in likelihood feel impelled to exclude the agent’s evidence. Merely feeling that it was just unfair that the evidence had been obtained in that particular way, however, would not be sufficient on its own to justify exclusion under s 78. The case law has developed sufficiently to cater for this.
The leading authority on the application of the PACE 1984, s 78 (1), to a prosecution founded on entrapment is the decision of the House of Lords in Loosely  1 WLR 2060. In deciding whether conduct amounts to state-created crime, the existence or absence of a predisposition on the part of the accused to commit the crime is not the criterion by which the acceptability of police conduct is to be decided, because predisposition does not make acceptable what would otherwise be unacceptable conduct on the part of the police or other law enforcement agencies.
The case law has developed considerably in this area and it is fair to say that it has developed to make room for fairness and prevent miscarriages of justice. A useful guide in determining application of the issues surrounding entrapment is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. The yardstick for the purposes 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. The greater the degree of intrusiveness, the closer will the courts scrutinize the reason for using it. On this, proportionality has a role to play.
Whether a police officer can be said 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 police officer rather than in secrecy with someone else, will usually be a most important factor, but not necessarily decisive. 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. In applying this test, the court has regard to all the circumstances of the case, such as the nature of the offence. The use of proactive techniques is more appropriate in the case of some offences, e.g., dealing in unlawful substances, offences with no immediate victim (such as bribery), offences which victims are reluctant to report and conspiracies. The secrecy and result of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations. The reason for the particular police operation and supervision is another factor.
To allow police officers 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. 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. These provisions have arguably contributed significantly to regulating the law relating to entrapment. The police must act in good faith. It is not normally 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.
In Sang  AC 402, the House of Lords held that whatever the ambit of the judicial discretion to exclude admissible evidence, it does not extend to excluding evidence on the grounds that it was instigated by an agent provocateur, because if it did so extend it would amount to a procedural device whereby the trial judge could avoid the substantive law, under which it is clearly established that there is no defence of entrapment. The test under s 78 remains as whether any impropriety affects the fairness of the proceedings: the court cannot exclude evidence under the section simply as a mark of its disapproval of the way in which it was obtained.
Would Jessie’s confession be admissible in court and why?
Tight restrictions have been imposed on the conditions under which evidence of a confession may be admitted in a criminal trial. In particular, the prosecution may be required to prove that a confession it wishes to adduce was not obtained in a manner that might cast doubt on its reliability. The most important rules governing confessions are to be found in PACE. Under s 76(1) of PACE a confession may be given in evidence against an accused only ‘in so far as it is relevant to any matter in issue in the proceedings and it is not excluded by the courting pursuance of this section’.
It will be for Jessie’s counsel to contest the admissibility of a confession. Once the issue has been raised, s 76(2) then lays down that a court must exclude a confession if the prosecution fails to prove beyond reasonable doubt that it has not been obtained either (i) by oppression or (ii) as a consequence of things said or done which might render a confession unreliable. Oppression is defined as torture, inhuman or degrading treatment as well as the use or threat of violence. In Jessie’s case, there is no ground for arguing oppression, as there is nothing in the facts that satisfy the criteria laid down in its definition.
There is the second limb of the test, which provides that a confession must be excluded if it has been made in consequence of things said and done which might render it unreliable. The test refers to ‘anything said or done’, which poses the question of by whom must theses things have been said and done? It was held in Goldenberg (1988) 88 Cr A R 285, that what was needed was ‘something external, something likely to have influence on the defendant’. In relation to Jessie, there is no indication that anything was said or done by the officers that caused her to make her confession. According to Jessie, the reason for her confession was to get to her mother, this came directly from within herself and as such is not covered in this provision. The section’s use of the expression ‘in consequence of’ showed that a causal link had to be established between what was said or done and the subsequent confession.
In conclusion, Jessie’s confession is unlikely to be excluded and in the circumstances there is no evidence to suggest that she confessed neither as a consequence of being ‘oppressed’ by the police nor as a result of ‘something done or said’.
Section 77 of PACE provides that where the prosecution case against a mentally handicapped person relies wholly or substantially on a confession that was not made in the presence of an independent person, the court shall warn the jury of the special need for caution before convicting the accused in reliance on the confession. The sort of independent person envisaged by this section includes solicitors instructed by the suspect, but expressly excludes police officers and those employed for or engaged on ‘police purposes’ within the meaning of the Police Act 1996 (s 77(3)). As was indicated in Bailey  2 Cr App R 262, ‘what is required in summing up in such cases is a full and proper statement of the mentally handicapped defendant’s case against the confession’s being accepted by the jury as true and accurate’.
Section 78 of PACE is most commonly used in cases where evidence has been obtained in breach of PACE codes of practice, which notably regulate the way in which the police question suspects and so on. It is well established that a judge, as part of his inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to exclude otherwise admissible prosecution evidence if, in his opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.
In the case against Jessie there have undoubtedly been some breaches by the police officer conducting the interview. In exercising his/her discretion as laid down above and as provided for by s78 PACE, the trial judge can exclude the entire interview. In particular, the police officers conducting Jessie’s interview have ignored the provisions laid down in Code C of PACE. PACE code C relates to rules and procedures governing the detention, treatment and questioning of persons by police officers. It will then be for the trial judge having considered the breaches cumulatively whether to allow evidence to be excluded under s.78 PACE.
The breaches identified in Jessie’s case include the right not be held incommunicado (Any person arrested may on request have one person known to them or likely to take interest in their welfare be informed at public expense of their whereabouts as soon as practicable); Right to legal advice (all detainees must be informed that they may at anytime consult and communicate privately with a solicitor); Right to at least two light meals and one main meal should be offered in any 24hr period (Drinks should be provided at meal times and upon reasonable request between meals. Paragraph 11.15 expressly states that a juvenile or person who is mentally disordered or vulnerable must not be interviewed regarding their involvement or suspected involvement in a criminal offence in the absence of an appropriate adult. Paragraph 1.4 of Code C which states that If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purpose of this code. As regards the situation with strip search, paragraph 10 of Annex A of Code C PACE provides that ‘a strip search may take place only if it is considered necessary to remove an article which a detainee would not be allowed to keep, and the officer reasonably considers the detainee might have concealed such an article.
Due to all the above breaches taken together, I would submit that a trial judge acting reasonably and exercising his discretion to exclude Jessie’s interview and confession evidence will in fact exclude the evidence in order to facilitate fairness.
- Mirfield, Silence, Confessions and Improperly Obtained Evidence: (1997) Oxford Publishing Press
- Munday R, Evidence, Butterworths 2001
- Murray P, Blackstone’s Criminal Practice 2004, Oxford Publishing Press
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