What Is Entrapment?
Share
Entrapment arises when law enforcement officers or government agents induce or persuade an individual to commit a crime that the person would not have otherwise committed. The basic idea behind entrapment is that the government, rather than the accused, is responsible for instigating and encouraging the criminal activity.
Historically, entrapment was common in the eighteenth and nineteenth centuries. Entrapment was employed by institutions like the Bank of England and the Royal Mint to catch individuals involved in currency crime during the Restriction Period of 1797–1820. Entrapment by plainclothes policemen was used to prosecute gay men, even after the Sexual Offences Act 1967 exempted consensual gay sex in private from prosecution. This reflects a historical misuse of entrapment for discriminatory purposes.
The key element in entrapment is the improper or overbearing conduct of law enforcement, leading an otherwise unwilling person to engage in criminal activity. First, there must be active involvement, encouragement, or inducement by government agents or law enforcement officers. This can include tactics such as pressure, coercion, persuasion, or deceit, which go beyond merely providing an opportunity for the individual to commit a crime. Second, the accused must demonstrate that they were not predisposed or inclined to commit the crime independent of the government's actions. If the person was already willing and ready to commit the offence, and the government's actions merely provided an opportunity, entrapment is less likely to be a valid defence.
The main authority on entrapment in England and Wales is the decision of the House of Lords in R v Loosely (2001). This decision is considered equally applicable in Scotland. According to this ruling, a stay (halting legal proceedings) may be granted if the conduct of the state (usually law enforcement) was so seriously improper that it brought the administration of justice into disrepute. Lords Hoffman and Hutton identified certain factors to be considered when deciding whether to stay proceedings against a defendant. These factors include:
It has been established that certain police activities, such as conducting test purchases or posing as passengers to catch unlicensed taxi drivers, are generally acceptable and do not constitute entrapment. For example, the case DPP v Marshall deemed test purchases by the police as generally acceptable.
Article 6 of the European Convention on Human Rights (ECHR) in the context of prosecutions involving acts induced by undercover officers. Article 6 of the ECHR addresses the right to a fair trial, and its interpretation has implications for cases where individuals are prosecuted based on actions induced by undercover agents.
In the case of Teixeira de Castro v Portugal, the European Court of Human Rights found that the prosecution of a man for drug offences, where undercover police had asked him to procure heroin, amounted to a breach of the defendant's rights under Article 6 of the ECHR. The court held that the actions of the investigating officers went beyond those of typical undercover agents because they not only observed but actively instigated the offence. The court emphasised that there was nothing to suggest that without the intervention of the undercover officers, the offence would have been committed.
The decision in Teixeira de Castro has been influential in the interpretation of domestic law in the United Kingdom. In the Looseley case, the House of Lords referred to the Teixeira de Castro decision when considering the application of the entrapment defence. The Court in Loosely indicated that a stay of proceedings might be warranted if the conduct of the state (police) was so seriously improper that it brought the administration of justice into disrepute, aligning with the principles established in the Teixeira de Castro case.
The recognition that prosecution based on acts induced by undercover officers may violate the right to a fair trial underscores the importance of upholding fundamental human rights, even in the context of law enforcement activities. The courts have acknowledged that there are limits to the actions of undercover agents, and when those limits are exceeded, it can result in a breach of the defendant's rights under Article 6.
Historically, entrapment was common in the eighteenth and nineteenth centuries. Entrapment was employed by institutions like the Bank of England and the Royal Mint to catch individuals involved in currency crime during the Restriction Period of 1797–1820. Entrapment by plainclothes policemen was used to prosecute gay men, even after the Sexual Offences Act 1967 exempted consensual gay sex in private from prosecution. This reflects a historical misuse of entrapment for discriminatory purposes.
The key element in entrapment is the improper or overbearing conduct of law enforcement, leading an otherwise unwilling person to engage in criminal activity. First, there must be active involvement, encouragement, or inducement by government agents or law enforcement officers. This can include tactics such as pressure, coercion, persuasion, or deceit, which go beyond merely providing an opportunity for the individual to commit a crime. Second, the accused must demonstrate that they were not predisposed or inclined to commit the crime independent of the government's actions. If the person was already willing and ready to commit the offence, and the government's actions merely provided an opportunity, entrapment is less likely to be a valid defence.
The main authority on entrapment in England and Wales is the decision of the House of Lords in R v Loosely (2001). This decision is considered equally applicable in Scotland. According to this ruling, a stay (halting legal proceedings) may be granted if the conduct of the state (usually law enforcement) was so seriously improper that it brought the administration of justice into disrepute. Lords Hoffman and Hutton identified certain factors to be considered when deciding whether to stay proceedings against a defendant. These factors include:
- Whether the police acted in good faith.
- Whether the police had good reason to suspect the accused of criminal activities.
- Whether the police suspected that crime was particularly prevalent in the area of the investigation.
- Whether pro-active investigatory techniques were necessary due to the secrecy and difficulty of detecting the criminal activity.
- The defendant's circumstances and vulnerability.
- The nature of the offence.
It has been established that certain police activities, such as conducting test purchases or posing as passengers to catch unlicensed taxi drivers, are generally acceptable and do not constitute entrapment. For example, the case DPP v Marshall deemed test purchases by the police as generally acceptable.
Article 6 of the European Convention on Human Rights (ECHR) in the context of prosecutions involving acts induced by undercover officers. Article 6 of the ECHR addresses the right to a fair trial, and its interpretation has implications for cases where individuals are prosecuted based on actions induced by undercover agents.
In the case of Teixeira de Castro v Portugal, the European Court of Human Rights found that the prosecution of a man for drug offences, where undercover police had asked him to procure heroin, amounted to a breach of the defendant's rights under Article 6 of the ECHR. The court held that the actions of the investigating officers went beyond those of typical undercover agents because they not only observed but actively instigated the offence. The court emphasised that there was nothing to suggest that without the intervention of the undercover officers, the offence would have been committed.
The decision in Teixeira de Castro has been influential in the interpretation of domestic law in the United Kingdom. In the Looseley case, the House of Lords referred to the Teixeira de Castro decision when considering the application of the entrapment defence. The Court in Loosely indicated that a stay of proceedings might be warranted if the conduct of the state (police) was so seriously improper that it brought the administration of justice into disrepute, aligning with the principles established in the Teixeira de Castro case.
The recognition that prosecution based on acts induced by undercover officers may violate the right to a fair trial underscores the importance of upholding fundamental human rights, even in the context of law enforcement activities. The courts have acknowledged that there are limits to the actions of undercover agents, and when those limits are exceeded, it can result in a breach of the defendant's rights under Article 6.
