1 Flashcards
R v Birtles - learning point
Offence must be laid on
Can encourage informer to take part in the offence or show enthusiasm to take part themselves
CANNOT encourage the informer to encourage someone else to take part in the offence or an offence of a more serious charter which they would not have committed
R v McEvilly and Lee - learning point (large scale alcoholic drinks brought and a week later warehouse broken into)
Police evidence shows that an offence has been ‘laid on’ and a plan for carrying it out was already clearly contemplated - the fact it might not have happened did not matter and was not ground to exclude evidence
R v Looseley - learning point
when D alleges there has been entrapment into committing offences by inappropriate conduct by police proceedings should be stayed
Can provided an ‘unexceptional opportunity’ but must not instigate a crime that was never contemplated.
DO NOT AP
operation appropriately authorised and UC present as ordinary customers. - D’s appeal was dismissed. Can be more than passive use a considerable degree of persuasion.
AP defined by the Royal Commission on Police Powers 1928
A person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such an offence
R v Smurthwaite and Gill [1994] - contract to Kill - full including learning point
The two D’s were convicted separately of soliciting murder. In each case the person solicited was in fact an undercover police officer posing as a contract killer. Covertly recorded conversations had.
UC’s were agents provocateur and had obtained the recordings by entrapment or by means of a trick.
Dismissed and provided Smurthwaite Criteria
Smurthwaite Criteria
- whether the undercover operative was acting as an agent provocateur;
- the nature of any entrapment;
- whether the evidence consists of admissions to a completed offence or relates to the actual commission of an offence;
- how active or passive the officer’s role was in obtaining the evidence;
- whether there is an unassailable record of what occurred or whether it is strongly corroborated;
- whether the undercover operative abused his [undercover] role to ask questions which ought properly to have been asked as a police officer in accordance with PACE Code C.
R v Bryce [1992] full including learning point
UC posing as the innocent purchaser of a vehicle believed to have been stolen, asked the vendor ‘How warm is it’ and, later, ‘How long has it been nicked’.
circumvent Code C. and no conversations recorded - there was no independent corroboration of them
R v Christou and Wright [1992] - full including learning point
Sting op - stolen good taken and question which a vendor/fencer would ask so could not be discounted- conversation was on equal terms
“voluntarily applied themselves to the trick”
Provided no more than an unexceptional opportunity
Williams and O’Hare v The Director of Public Prosecutions [1993] full including learning point
Police officers parked and left insecure and unattended in a busy street a van which appeared to contain a valuable consignment of cigarettes but which in fact contain empty cigarette cartons. Officers later concealed themselves and observed the two defendants removing empty cartons from the van.
D’s had not been specifically targeted and so the ‘trick’ had not been applied to them. They had ‘voluntarily applied themselves to the trick’.
Nottingham City Council v Amin [2000] full including learning point
UC’s flagged down an unlicenced taxi. evidence originally excluded and an appear was submitted.
D convicted
unobjectionable if a UC gave D an opportunity to break the law, of which he freely took advantage, in circumstances where it appeared that he would have behaved in the same way if the opportunity had been presented by someone else
Schenck v Switzerland (1988) learning point
Article 6 - right to fair trial
the prosecution relied on evidence of tape recordings of telephone conversations which had been illegally obtained.
Court ruled didn’t necessarily have to exclude evidence if trial on a whole was fair
D was given the opportunity to challenge the authenticity of the recordings which was not the only evidence on which the conviction was based
Khan v United Kingdom (2001learning point
Where evidence obtained by use of a covert audio surveillance device had been obtained in breach of Article 8
Did not make it breach of article 6
Domestic courts been of the view that the admission of the evidence would have resulted in substantive unfairness
D had been given the opportunity to challenge both the authenticity and admissibility of the recordings.
There must be a proper basis in law if covert activity which infringes against Article 8 of the European Convention is to be deemed lawful - if not it’ll be a breach and proceeding could be stayed using s78
P.G. and J.H. v United Kingdom [2002] full including learning point
deployment of recording devices in the defendant’s flat and a police cell corridor - breach in article 8 but article 6
Evidence from the device in the flat was not the only evidence upon which the prosecution case relied and the defendants had been given ample opportunity to challenge both the authenticity and the use of the recordings
European Court made clear that the fact that evidence was obtained unlawfully does not mean that the evidence should be excluded [or the proceedings stayed] where the court is satisfied that the defendant can still receive a fair trial.
R v Mason, Wood, McClelland and Tierney full including learning point
covert taping of prisoners in custody following arrest breached article 8 but judge still admitted evidence
Texeira de Castro v Portugal (1998) learning point
Ruled that the admissibility of evidence where there has been entrapment of a person not pre-disposed to commit that type of offence will not be left to regulation under national law. The court will exclude it because it undermines the fairness of trials.
