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Comments on Entrapment in English law

[Not a defence in UK case law] [The jurisdiction to stay proceedings] [The Section 78 discretion]

Entrapment occurs when an agent of the state - usually a law enforcement officer or a controlled informer - causes someone to commit an offence so that the latter should be prosecuted.

Entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. That is, you cannot use it as a get-out-free card defence.

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.

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.

(a) Not a defence in British case law

The fact that the accused was entrapped is not inconsistent with their having broken the law. The entrapment will usually have achieved its object in causing the prohibited act with the necessary guilty intent.

(b) The jurisdiction to stay proceedings

The court's assertion of such a jurisdiction is of recent origin. Traditionally it was for the police authorities to take disciplinary action or prosecute police officers or informants who took part in the crime.

A stay should be granted not because the accused was not guilty or because they could not receive a fair trial or to discipline the police but to protect the integrity of the criminal justice system.

The leading case is Bennett v Horseferry Road Magistrates' Court [1993] 3 All ER 138, [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 United Kingdom 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, or more generally phrased as a jurisdiction to prevent abuse of executive authority.

On the authority of Bennett's case, the House decided in R v Latif that in principle a stay could be granted on the grounds of entrapment. Lord Steyn ([1996] 1 All ER 353 at 361, [1996] 1 WLR 104 at 112) said that the court should exercise the jurisdiction when 'Weighing countervailing considerations of policy and justice', the judge considers that the bringing of the prosecution 'amounts to an affront to the public conscience'.

(c) The section 78 discretion

The s 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. Rather the defendant is saying that whatever the evidence, there should be no trial at all. The appropriate remedy, if any, is therefore not the exclusion of evidence but a stay of the proceedings. Potter LJ in R v Shannon [2001] 1 WLR 51.

But 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 s 78. As Potter LJ pointed out in R v Shannon (at 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 the entrapment:

"So, for instance, if there is good reason to question the credibility of evidence given by an agent provocateur, or which casts doubt on 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 proceedings from available, admissible and 'untainted'evidence, then the judge may readily conclude that such evidence should be excluded."

This question of whether the proceedings should be stayed on the grounds of entrapment is considered a matter to be addressed before the proceedings have begun. But sometimes proceedings are not conducted entirely logically and an application to exclude evidence under s 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.

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