Title of Case comment: How Far Can You Go In Entrapment?

Completion date: 29 October 2001

A very important decision from the House of Lords. It is not primarily a Human Rights case. According to their Lordships, Article 6 of the ECHR, and in particular, the oft-cited case of Teixeira de Castro v Portugal (1998) 28 EHRR 101 have not altered the domestic law. The law was and is that entrapment is not a defence per se. However, it is clear that the whole subject of entrapment has been re-visited – now by the House of Lords - as a result of the Human Rights Act. And it is also clear that this case provides at the very least a refinement of the previous law. It is helpful to distinguish between entrapment per se on the one hand and entrapment which has the additional element(s) which will lead to a stay on the other. The latter could be called abusive entrapment. So, what is the test to be applied in deciding which category a particular case is in? There is not one simple test. Rather, the Court must always ask itself the central question: whether the actions of the Police were so seriously improper as to bring the administration of justice into disrepute (para. 25). If there has been an abuse of state power, then the appropriate remedy is a stay of the indictment, rather than exclusion of the evidence under Section 78 PACE. Indeed, Lord Nicholls goes so far as to say that if there has been entrapment, then even where there is other evidence, the abuse of state power is such that the case should be stopped entirely by means of a stay (para. 16). In deciding whether there has been such an abuse of state power, the Court will wish to balance various factors; in other words, to apply the principle of proportionality. Among the factors to be considered will be the following:-

1. The nature of the offence, since some offences are difficult to detect otherwise. It is implicit that the more difficult the offence is to detect without intrusive inducement from the Police, the more that such intrusion will be justifiable – or proportionate.
2. The factual basis for the Police carrying out the operation. For example, information that a particular pub was suspected to be a base for selling drugs. Indeed, the Court must ask whether the Police had reasonable suspicion that such offences were being committed either by the accused or by others. Lord Hoffman cites with approval the Undercover Operations Code of Practice (at paras. 61-64), which require pre-existing reasonable suspicion of such offences being committed before undercover officers can be used. Further, Lord Hoffman says of the example of the setting up of a van containing cigarettes to see if someone takes the opportunity to steal them, "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." Applying the principle behind this example may well become central to many applications for a stay.
3. The extent of the Police inducement. The simple test applied formerly of whether the offender was predisposed to commit such an offence is now inadequate. Thus a problem faced by many legal advisers of defendants has been removed. When an accused has a previous conviction, it does not now preclude an application for a stay on the ground of (abusive) entrapment. Indeed, previous convictions have only the most limited relevance (see paras. 22 and 68). Rather, the Court should ask whether the accused had the intention of committing the offence or a similar offence, if opportunity arose, prior to the inducement. The Court should also ask whether "the offence was induced by persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence" (para 101).

These are merely examples of the types of questions the Court will ask itself in order to answer the main question of whether there has been an abuse of state power. The appeal concerned two cases and they provide examples of how the principles work out in practice. The House upheld the conviction of a man for selling drugs in a pub to an undercover officer who had obtained the accused’s telephone number and had telephoned him asking for drugs. However, the House approved the trial judge’s decision to order a stay in an Attorney-General’s Reference where the sale of drugs had taken place following the additional inducement of the accused being offered cut price cigarettes prior to the drugs transaction. The additional inducement was enough to push it over the line in the House of Lords’ view. It is worthy of note that the Court of Appeal had taken a different view, holding that the trial judge had been wrong to order a stay. Whilst the line is clear, therefore, it can be seen that not only is there no fixed test available for deciding which side of it a particular case will fall, but even very experienced and senior judges come to different conclusions. Notwithstanding this, the refinement of the previous law this case provides is welcome and the factors to be considered will be of practical use in future applications.