Entrapment - England and Wales

England and Wales

Entrapment arises when a person is encouraged by someone in some official capacity to commit a crime. If entrapment occurred, then some prosecution evidence may be excluded as being unfair, or the proceedings may be discontinued altogether.

Some examples of entrapment are as follows:-

1. A police officer encourages a person to commit a crime so that the officer can have him prosecuted for that crime.
2. The greater the degree of entrapment by the police officer, the more likely the court will see it as entrapment. See the case R v Bryne . That is, entrapment is not a substantive defense (R v Sang); i.e. it does not automatically negate the prosecution case.
3. Customs Officers who aid and abet fraud in order to prosecute the fraud. A notorious example of this occurred in 2003. The 'Stockade' prosecution ended in failure when the Court of Appeal quashed convictions against seven people accused in connection with the alleged diversion of £105 million in excise duty (VAT). The conduct of such Excise diversion cases resulted in the loss of up to £2 billion in public revenue.

If a person has committed an offense because of entrapment, the Court may stay the proceedings under its inherent jurisdiction to prevent abuses of process (which prevents the case going ahead) or exclude evidence under section 78 of the Police and Criminal Evidence Act 1984. The grant of a stay is normally the most appropriate response.

The main authority on entrapment in the United Kingdom is the decision of the House of Lords in R. v. Loosely; Attorney-General's Reference (n.3 of 2000). A grant of a stay is awarded if the conduct of the state was so seriously improper that the administration of justice was brought into disrepute. In deciding whether to grant a stay, the Court will consider, as a useful guide, whether the police did more than present the defendant with an unexceptional opportunity to commit a crime.

In Loosely, Lords Hoffman and Hutton indicated certain factors that should be considered in deciding whether proceedings against a defendant should be stayed. These 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 in which the investigation took place (Williams v. DPP);
• Whether pro-active investigatory techniques were necessary because of the secrecy and difficulty of detection of the criminal activity in question;
• The defendant's circumstances and vulnerability; and
• The nature of the offence.

It has been held that it is generally acceptable for the police to conduct test purchases (DPP v. Marshall) or pose as passengers to catch unlicensed taxi drivers (Nottingham City Council v. Amin).