Entrapment Flashcards
Give a brief definition of entrapment
- Entrapment occurs when state becomes involved in the instigation of a crime, which would not have been committed without the involvement of police through deception, pressure, encouragement or inducement per Lord Phillip in Brown v HMA 2002
If evidence is deemed to have been obtained by police officers through entrapment what will happen?
That evidence will likely be inadmissible in court.
Teixeira de Castro v Portugal 1998
FACTS
- Two undercover officers suspected a man VS was involved in petty drug trafficking and proceeded to offer to buy hash for him to find out his supplier
- VS was pressed by officers but he could not find a supplier
- They changed saying they wished to buy heroin to which VS stated the name of Castro
- Castro, at the request of another contact(FO), met with VS and the two officers in a car
- The officers offered to buy heroin for cash
- Castro agreed to source heroin and was accompanied by FO to the house of JPO who obtained heroin from another person and sold it to the applicant
- Applicant then took drugs to VS’s home and deal took place with officers present
APPEAL
- Appeal on breach of Art.6 to a fair hearing as the officers incited him to commit a crime to which he was convicted
- Commission stated there was a breach of Art.6 and that when a state use undercover agents they must be restricted and certain safeguards put in place even in fight against drug trafficking
- On the face of it authorities had no reason to suspect the applicant was a drug dealer and furthermore the applicant had no criminal record
- Applicant only had drugs in possession that he was incited into getting
Marsh v Johnston 1959
FACTS
- Two plain clothes police officers witnessed a customer purchasing alcohol outwith licensing time periods
- The officer then ordered liquor themselves from which they received and exchanged payment
- Complainer then arrested
APPEAL
- Two officers committed a crime themselves in order to obtain the evidence
HELD
- Appeal refused
- Officers could only establish evidence by committing offence, something they done after witnessing the sale of alcohol already, which both customers denied hence the need for further action
- If police had pressed complainer to commit offence which he would not otherwise then position would be different
Brown v HM Advocate 2002
Case where entrapment never arose on the case but the court gave opinion referring to R v Loosley
- The opinions of Lord Phillip and Clark was that entrapment fell in to a different category to oppression
- in which the test was whether there was prejudice so grave as to be incapable of being removed by direction
- entrapment constituted a misuse of state power, and an abuse of process of the court, so fundamentally unacceptable that it was unnecessary to investigate whether the accused had been prejudiced or been the victim of unfairness
- The opinion of this case was that the issue of entrapment should be approached in a similar way to our English counterparts through plea in bar of trial, or where entrapment arises during the case through an objection to the admissibility of evidence
Jones v HM Advocate 2009
FACTS
- Accused appealed the decision of trial judge repealing their plea in bar of trial that they were entrapped by police in to committing the offence of reset
- Police officer posed as loss adjuster after the appellants aroused suspicion
- They argued that the police had actively encouraged them in to committing reset
HELD
- Entrapment had not been established
- No question of police having instigated the crime
- Criminal activity would have occurred without the interference of police
- This case decided that the favoured approach in respect of entrapment was a stay in proceedings (plea in bar of trial) because it was a form of oppression per Lord Menzies and Lord Reed
HMA v IP 2017
FACTS
- IP charged with contravention of the Sexual Offences Act after having conversations about sex with an underage girl online
- IP had a conversation with an undercover officer posing as a woman with a 14 year old child
- IP never mentioned anything sexual with the child, stating he had never been involved with a child
- After mentioned by the officer of sexual conduct, upon which she stated the daughter could join in did IP agreed
- Sheriff sustained a plea in bar of trial on part of IP as police had implanted the necessary intent by persisting with the idea that a child could be involved in his sexual activity
HELD - CROWN APPEAL
- There was no evidence that P had expressed any interest in sexual activity with children in the original chat logs DESPITE THE WEBSITE BEING SPECIFICALLY FOR FANTASIES INCL. CHILD PORN
- Court were satisfied that a fine line had been crossed and the case should be thrown out
Anderson and Millar v Brown 2011
FACTS
- Two undercover officers were sent to a nightclub suspected of distributing cocaine and specifically to gather information about four named individuals (F)
- F was not present at the club but the officers engaged the first appellant with no reason to approach him and no suspicion of supplying drugs
- Officers inquired where they could purchase drugs and the appellant provided drugs on two separate occasions
- A judge repelled the appellants plea in bar of trial that they had been entrapped by police
- On appeal they argued that police crossed into unauthorised illegitimate activity by choosing the appellants at random and initiating a conversation about drugs despite not being subject of authorisation or them not behaving in a suspicious manner
HELD
- Appeal refused
- authorisation was plainly based on intelligence as to activity within the nightclub, and it was entirely reasonable to include reference to others
- Actions of the police were expected of a responsible officer where F was not present, and having confirmed presence of drug dealing was common, it could not be said to be random
- Appellants criminal conduct had begun before Police made any inquiries to drugs, and that inquiry in no way was an incitement or instigation for appellant to commit a crime
What is a stay in proceedings?
Where the prosecution of a defendant/accused comes to a halt
How is a stay in proceedings referred to in Scots Law?
Plea in bar of trial
In the English case of R v Loosely what did Lord Nicholls state in relation to the accused and the police?
That entrapment is not to excuse the defendant because he or she is less culpable but because the police behave so improperly
When will a stay in proceedings be ordered in relation to entrapment?
Where executive action has threatened either a basic human right or the rule of law
How was state entrapment described in relation to the public, the justice system and fairness in R v Loosely?
That entrapment by state officials will amount to an
- ” affront to the public conscience
- liable to damage “the integrity of the criminal justice system”
- “deeply offensive to the ordinary notion of fairness”
What is the general consensus surrounding media entrapment?
That is is different from state entrapment and those entrapped by journalist should not be granted a stay except in exceptional circumstances
What did the case of Saluja discuss in relation to media entrapment?
- That entrapment cases are “wholly different” in respect of the media and the state as there is no misuse of power by the state
- But it was stated in Saluja that media entrapment may be subject to a stay where the conduct was “so serious that reliance on it in court would compromise that court’s integrity”
