"Internet Law Book Reviews" Rob Jerrard LLB LLM
Entrapment: abuse of legal process for police to incite crime
R v Looseley Attorney-General's Reference No 3 of 2000
House of Lords (2001) The Times, 29 October
Incitement; fairness of proceedings; abuse of process; agent provocateur; exclusion of evidence; Police and Criminal Evidence Act 1984
The statutes
The Police and Criminal Evidence Act, s. 78, so far as material provides:
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The facts
The prosecution case against the defendant Looseley was that he had supplied heroin to an undercover police officer known as 'Rob'. Police mounted an undercover operation because of their concern about trade in class A drugs.
One focus of the operation was a public house, where Rob was given Looseley's name and telephone number and told that Looseley could obtain drugs. Rob telephoned Looseley who agreed to supply heroin at £30 for half a gram. On three separate occasions Looseley supplied Rob with quantities of heroin. The judge refused to stay the proceedings as an abuse of the process of the court or to exclude the officer's evidence pursuant to s. 78 of the Police and Criminal Evidence Act 1984. Looseley then pleaded guilty.
The acquitted person in the Attorney-General's reference was also charged with supplying heroin to undercover police officers who were offering contraband cigarettes for sale at a housing estate. They were introduced to the acquitted person, who bought the cigarettes at a bargain price. The officers then asked him if he could provide them with heroin. He said he could not get heroin at short notice and that he was 'not really into heroin' himself, but he eventually obtained drugs from another source and sold it to the officers.
He subsequently gave them the supplier's telephone number, and the officers bought more heroin directly from the supplier. When he was interviewed by the police after his arrest the defendant said that he had never supplied heroin before, that he had only become involved because the officers were offering to sell him cheap cigarettes and so he was doing 'a favour for a favour'.
What is entrapment?
From the judgment of Lord Nicholls: every court had an inherent power and duty to prevent abuse of its process. That was a fundamental principle of the rule of law. By recourse to that principle, courts ensured that executive agents of the state did not misuse the coercive, law-enforcement functions of the courts and thereby oppress citizens of the state. Entrapment was an instance where such misuse might occur. It was simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment, a misuse of state power and an abuse of the process of the courts. The difficulty lay in identifying conduct which was caught by such imprecise words as 'lure', or 'incite', or 'entice', or 'instigate'. If police officers acted only as detectives and passive observers, there would be little problem in identifying the boundary between permissible and impermissible police conduct. But that would not be a satisfactory place for the boundary line. Detection and prosecution of consensual crimes committed in private would be extremely difficult. Trafficking in drugs was one instance.
With such crimes there was usually no victim to report the matter to the police. And sometimes victims or witnesses were unwilling to give evidence. Moreover, and importantly, in some instances a degree of active involvement by the police in the commission of a crime was generally regarded as acceptable. Test purchases from persons openly carrying on a business
fell easily into that category: see DPP v Marshall [1988] 2 All ER 683. Police officers in plain clothes purchased four cans of lager and a bottle of wine from the respondents' shop. The respondents were licensed to sell liquor by the case but not to sell individual cans or bottles of liquor. The respondents were charged with having sold the lager and the wine without having the requisite justices' licence, contrary to s. 160 of the Licensing 1 Act 1964. At the hearing before the magistrates the respondents contended that the police officers' evidence should be excluded under s. 78(1) of the Police and Criminal Evidence Act 1984 as having 'an adverse effect on the fairness of the proceedings' since it had been unfairly obtained because the officers had not at the time of the purchase revealed the fact that they were police officers. The magistrates accepted that contention and the prosecution was unable to proceed. The Director of Public Prosecutions appealed by way of case stated against the magistrates' decision to exclude the police officers' evidence.
Held - The evidence of the police officers had been wrongly excluded by the magistrates, since it had not been shown that the evidence of police officers who made test purchases in plain clothes would have an adverse effect on the fairness of the proceedings. The appeal would therefore be allowed and the case remitted to the magistrates with a direction to proceed with the hearing of the information.
See also Nottingham City Council v Amin [2000] 1 WLR 1071 where the defendant taxi-driver was flagged down in the street by two police officers in plain clothes. He carried the officers to their stated destination and accepted payment of the fare for the journey. The driver was not licensed to ply for hire in the district in which he collected the police officers and the local authority preferred an information against him under s. 45 of the Town Police Clauses Act 1847. The stipendiary magistrate described the police officers as agents provocateurs and ruled that their evidence against the driver fell to be excluded under s. 78 of the Police and Criminal Evidence Act 1984 in the reasonable exercise of his discretion, having regard to decisions of the European Court of Human Rights and the Human Rights Act 1998. He accordingly dismissed the information and the local authority appealed.
Held - Neither the jurisprudence of the European Court of Human Rights nor the forthcoming implementation of the 1998 Act obliged the court to exclude, under s. 78 of the 1984 Act, evidence obtained by police officers who had participated in the commission of a crime when, as in the instant case, there was no evidence of any pressure exerted by the constables or of any persuasion of the driver and there was no question of any misunderstanding. It followed that the admission of the evidence of the police officers had not had such an adverse effect on the fairness of the proceedings that it should have been excluded by the magistrate under s. 78 of the 1984 Act. Accordingly, the appeal would be allowed; Teixeira de Castro v Portugal (1998) 4 BHRC considered.)
Thus there were occasions when it was necessary for the police to resort to investigatory techniques in which the police themselves were the reporters and witnesses of the crime. But even when the use of those techniques was justified, there were limits to what was acceptable.
Remedy for entrapment
In R v Sang [1980]AC 402 the appellant was charged with conspiring with others to utter forged US banknotes. On his arraignment he pleaded not guilty to the charge. Before the case for the Crown was opened, counsel for the appellant applied to the court to hold a trial within a trial in order that it might consider whether the involvement of the appellant in the offence charged arose out of the activities of an agent provocateur. He said that he hoped at such trial to establish, by cross-examination of a police officer and by evidence-in-chief from an alleged police informer, that the appellant had been induced to commit the offence by an informer acting on the instructions of the police and that but for such persuasion the appellant would not have committed the offence. Counsel then hoped to persuade the judge to rule, in the exercise of his discretion, that the Crown should not be allowed to lead any evidence of the commission of the offence thus incited, and to direct that a verdict of not guilty be returned. Without hearing the evidence, the judge ruled that he had no discretion to exclude the evidence. The appellant retracted his plea of not guilty, pleaded guilty and was sentenced to a term of imprisonment. His appeal against the judge's ruling was dismissed by the Court of Appeal.
On appeal to the House of Lords:
Held -
(i) As part of the judge's function at a criminal trial was to ensure that the accused received a fair trial according to law, the judge always had discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighed its probative value.
(ii) Because the court was not concerned with how evidence was obtained but merely with how it was used by the prosecution at the trial, a judge had no discretion, except in the case of admissions, confessions and evidence obtained from the accused after the commission of the offence, to refuse to admit relevant admissible evidence merely because it had been obtained by improper or unfair means. If evidence against the accused had been improperly obtained by the police through use of an agent provocateur or by a policeman and an informer inciting the accused to commit the alleged crime, that was not a ground on which the judge could exercise his discretion to exclude the evidence, although it could be a factor in mitigating the sentence imposed on the accused and might also be a matter for civil or disciplinary action against the police or for criminal proceedings against the policeman and the informer as principal offenders. It followed that what was effectively a defence of entrapment (a doctrine which had no place in English law) could not be accepted by the judge by means of the procedural device of exercising his discretion to exclude the prosecution's evidence of the commission of the crime.
(iii) There was therefore no justification for the exercise of the discretion to exclude the evidence, whether or not it had been obtained as a result of the activities of an agent provocateur, and it followed that the appeal would be dismissed
The decision of the Court of Appeal, Criminal Division affirmed
The House of Lords treated it as axiomatic that entrapment did not exist as a substantive defence in English law and that, leaving aside admissions and confessions, the court was not concerned with how evidence was obtained. It was no ground for the exercise of the judge's discretion to exclude evidence that the evidence was obtained as the result of the activities of an agent provocateur or by other unfair or improper means. That would be to let the defence of entrapment in by the back door.
The decision in Sang on the admissibility of evidence obtained unfairly was reversed by s. 78 of the 1984 Act giving the court power to exclude evidence on which the prosecution proposed to rely if, having regard to all the circumstances, the court considered the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The circumstances to which the court was to have regard included, expressly, the circumstances in which the evidence was obtained. In deciding whether to admit the evidence of an undercover officer, the judge could take into account matters such as whether the officer was enticing the defendant to commit an offence he would not otherwise have committed, the nature of any entrapment, and how active or passive was the officer's role in obtaining the evidence.
Next, the common law had also developed since R v Horse-ferry Road Magistrates Court, Ex p. Bennett [1994] 1 AC 42. The appellant, a New Zealand citizen, was alleged to have purchased a helicopter in England in 1989 by a series of false pretences and then to have taken it to South Africa. In November 1990 he was arrested in South Africa. The English police, who wished to arrest him, were informed but in the absence of an extradition treaty between the United Kingdom and South Africa no proceedings for the appellant's extradition were ever initiated. Instead, the appellant was put on an aircraft bound for London by the South African police and when he arrived in England on 28 January 1991 he was arrested. He was subsequently brought before magistrates who committed him to the Crown Court for trial.
The appellant sought judicial review of the magistrates' decision to commit him for trial, claiming that he had been forcibly returned to England against his will and brought within the jurisdiction as a result of disguised extradition or kidnapping. He alleged that the South African police had indicated that he would be repatriated to New Zealand but had then arranged with the English police that he would travel via England to enable him to be arrested and tried in England. He contended that the subterfuge and complicity between the English police and the South African police to obtain his presence within the jurisdiction to enable him to be arrested amounted to an abuse of the process of the court and that it would be wrong and improper for him to be tried in England.
The Divisional Court held that, even if there were evidence of collusion between the English police and the South African police in kidnapping the appellant and securing his enforced illegal removal from South Africa, the court had no jurisdiction to inquire into the circumstances by which he came to be within the jurisdiction and accordingly dismissed his application for judicial review. The appellant appealed to the House of Lords.
Held (Lord Oliver dissenting) - The maintenance of the rule of law prevailed over the public interest in the prosecution and punishment of crime where the prosecuting authority had secured the prisoner's presence within the territorial jurisdiction of the court by forcibly abducting him or having him abducted from within the jurisdiction of some other state in violation of international law, the laws of the state from which he had been abducted and his rights under the laws of that state, and in disregard of available procedures to secure his lawful extradition to the jurisdiction of the court from the state where he was residing. It was an abuse of process for a person to be forcibly brought within the jurisdiction in disregard of extradition procedures available for the return of an accused person to the United Kingdom and the High Court had power, in the exercise of its supervisory jurisdiction, to inquire into the circumstances by which a person was brought within the jurisdiction. If satisfied that it was in disregard of extradition procedures by a process to which the police, prosecuting or other executive authorities in the United Kingdom were a knowing party, the court could stay the prosecution and order the release of the accused. The appeal would therefore be allowed and the case remitted to the Divisional Court for further consideration.
The House of Lords held that the court had jurisdiction to stay proceedings and order the release of the accused when the court became aware there had been serious abuse of power by the executive. The court could refuse to allow the police or prosecuting authorities to take advantage of such an abuse of power by regarding it as an abuse of the court's process.
Those statutory and common law developments had been reinforced by the Human Rights Act 1998. Entrapment and the use of evidence obtained by entrapment might deprive a defendant of the right to a fair trial.
Entrapment
The judicial response to entrapment was based on the need to uphold the rule of law. A defendant was excused, not because he was less culpable, although he might be, but because the police had behaved improperly. To prosecute in such circumstances would be an affront to the public conscience and would not be fair. A useful guide to identifying the limits to the type of police conduct that in any set of circumstances was acceptable was to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. The yardstick for the purpose of the test was, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances.
Police conduct of that nature was not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police did no more than others could be expected to do. The police did not create crime artificially.
The investigatory technique of providing an opportunity to commit a crime touched upon other sensitive areas. Of its nature the technique was intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion and used for wholesale virtue-testing without good reason. The greater the degree of intrusiveness, the closer would the court scrutinise the reason for using it. On that, proportionality had a role to play. Ultimately, the overall consideration was always whether the conduct of the law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. The use of proactive techniques was necessary and hence appropriate in some circumstances more than in others. The secrecy and difficulty of detection and the manner in which the particular criminal activity was carried on were relevant considerations. The police had to act in good faith and not, for example, as part of a malicious vendetta against an individual or group. Having reasonable grounds for suspicion was one way good faith might be established, but having grounds for suspicion of a particular individual was not always essential.
Sometimes suspicion might be centred on a place, such as a particular public house. Sometimes random testing might be the only practicable way of policing a particular trading activity. The greater the inducement held out by the police, the more forceful or persistent the police overtures, the more readily might the court conclude that the police overstepped the boundary; their conduct might well have brought about the commission of a crime by a person who would normally avoid that kind of crime. Regard was to be had to the defendant's circumstances, including his vulnerability. What might be insignificant inducement to one person might not be so to another.
For the police to behave as would an ordinary customer of a trade, lawful or unlawful, being carried on by the defendant would not normally be regarded as objectionable. The defendant's criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that the defendant was currently engaged in criminal activity.
Human Rights Convention
The question raised by the Attorney-General's reference was whether, in a case involving the commission of an offence by an accused at the instigation of undercover police officers, the judicial discretion conferred by s. 78 of the 1984 Act or the court's power to stay proceedings as an abuse of the process of the court had been modified by the right to a fair hearing guaranteed by Article 6 of the Convention and the jurisprudence of the European Court of Human Rights. His Lordship would answer that question in the negative. There was no appreciable difference between the requirements of Article 6 and English law as it had been developed in recent years. In Teixeira de Castro v Portugal (1998) 28 EHRR 101, which concerned a conviction for heroin trafficking based mainly on the statements of two police officers, the European Court of Human Rights held that the necessary inference from the circumstances was that the officers had exercised an influence such as to incite the commission of the offence and that there had been a violation of the applicant's right to a fair trial under Article 6. The court's statement of principle was not divergent from the approach of English law.
The Decision
It would be unfair and an abuse of process if a person had been incited or pressurised by an undercover police officer into committing a crime that he would not otherwise have committed, but it would not be objectionable if the officer, behaving as an ordinary member of the public would behave, gave a person an unexceptional opportunity to commit a crime and that person freely took advantage of the opportunity.
The House of Lords so stated in two cases heard together. In the first, their Lordships dismissed an appeal by the defendant from the Court of Appeal which on 13 April 2000 upheld his conviction on 5 January 2000 at Crown Court on three counts of supplying a class A controlled drug contrary to s. 4 of the Misuse of Drugs Act 1971.
In the second, their Lordships ruled on a further reference by the Court of Appeal (The Times, 27 June 2001) at the request of the acquitted person, on the Attorney-General's reference pursuant to s. 36 of the Criminal Justice Act 1972, following a ruling at Derby Crown Court that proceedings be stayed as an abuse of the process of the court on the ground that undercover police officers had incited the accused person to commit the offences with which he was charged.
Comment
Entrapment
The issue of entrapment falls into two categories, that is to say: trying to obtain evidence relating to offences that have already been committed; and those cases where evidence is obtained of offences yet to be committed.
In relation to investigations concerning offences already committed, see R v Sang above.
In cases where officers are trying to obtain evidence of offences yet to be committed, the question as to the admissibility of evidence in cases of entrapment is whether the action of those involved in the 'trap' amount to that of agent provocateur (that is, they actively encouraged the defendants to commit the offence), or whether they gave the suspects the platform from which they could commit an offence. The question is whether the suspects voluntarily applied themselves to the trick and that they were not enticed or provoked into crime.
In R v Latif [1996] 1 All ER 353, the first appellant, S, approached H, a shopkeeper in Pakistan who knew local suppliers of heroin but who was also a paid informer of the United States Drugs Enforcement Agency, proposing the export of 20kg of heroin to the United Kingdom. The arrangement was made that S would deliver the heroin to H in Pakistan, H would arrange for it to be transported to London where he would take delivery of it and then pass it on to S, who would arrange for its distribution. H reported the deal to the local British drugs liaison officer, who arranged for a British customs officer to take delivery of the heroin from H and transport it to London. H then came to London from where he persuaded S that the heroin had arrived safely and that S should come to London to pick it up. S arrived in London and, together with the second defendant, L, arranged to meet H to pick up and pay for the heroin. A customs officer pretending to act on H's behalf came to the meeting and delivered packages got up so as to resemble the original bags of heroin to S, who was immediately arrested. L was also arrested. The defendants were charged with being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug, contrary to s. 170(2) of the Customs and Excise
Management Act 1979. At their trial the judge ruled against submissions: (i) that the proceedings were an abuse of process and should be stayed since S had been incited to commit the offence by the subterfuge of H and the customs officers who had then lured him into the jurisdiction; and (ii) that on the prosecution evidence the appellants were not guilty of the offence charged. The appellants were convicted and their appeals to the Court of Appeal on the ground that the judge's rulings were erroneous were dismissed. They appealed to the House of Lords.
Held - The appeals would be dismissed for the following reasons:
(1) Where a defendant had been trapped by the deception of police or customs officers into committing an offence that he would not otherwise have committed, the trial judge had to weigh in the balance the public interest, in ensuring that those who were charged with grave crimes should be tried, and the competing public interest, in not conveying the impression that the court would adopt the approach that the end justified any means, when exercising his discretion to decide whether there had been an abuse of process that amounted to an affront to the public conscience and required the criminal proceedings to be stayed. On the facts the judge had not erred in refusing a stay, since he had taken account of the relevant considerations in performing the balancing exercise and was entitled to take the view that S was an organiser in the heroin trade who had taken the initiative in proposing the importation and that the conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed; Bennett v Horseferry Road Magistrates' Court [1993] 3 All ER 138 applied.
(2) Although S had not committed the full offence of evading the importation of heroin under s. 170(2) of the 1979 Act, it was clear that he had committed two attempts at evasion: first in Pakistan, where S had delivered the heroin to H for the purpose of exportation to the United Kingdom, and nothing that the customs office subsequently did could deprive S's conduct of its criminal character; and secondly in London, where he had tried to collect the heroin from H for distribution in the United Kingdom. That was sufficient to prove that S had intended to commit the full offence and was guilty of acts that were more than merely preparatory to the commission of the full offence. Since an offence under s. 170(2) of the Act could be committed in one of two ways, namely by evasion or an attempt at evasion, S had correctly been found guilty of an offence under s. 170(2), DPP v Stonehouse [1977] 2 All ER 909 and dictum of Lord Griffiths in Liangsiriprasert v US Government [1990] 2 All ER 866 at 877 applied.
The court said that though no court would readily approve of trickery and deception being used, there were some circumstances in which one must recognise, living in the real world, that this was the only way in which some people were ever going to be brought to trial and that otherwise the courts would never get to try people who were seriously involved in serious offences.
Following this, the court in R v Springer [1998] CLR 912 held that the action of officers who telephoned the suspect to arrange three supplies of drugs was legitimate in the investigation of a crime.
The facts (of Springer) were these. In November 1996 the appellant, who is 30, suffered the death of his father. Two months later his marriage, which had been in difficulty for some time, finally broke down. He went to live with his mother and then with a new partner. He learned, according to the pre-sentence report, that she was terminally ill. That was something he learned, apparently, in February. Emotionally he was at a very low ebb and it is said that then he began to take heroin and cocaine. In the period after this until June he was twice stopped in his car. On the first occasion he had heroin and cannabis in his possession and on the second occasion cannabis. He was fined for these offences of simple possession.
Around March 1997 the appellant began to supply heroin to other addicts to finance his own addiction. It was in June that he committed the three offences of supplying heroin to which he pleaded guilty. It is clear that the appellant had come to the attention of the police as a suspected drug dealer. In order to discover whether this suspicion was justified, and if it was to obtain evidence against him, three telephone calls were made to the appellant's mobile telephone over two days, 25 and 26 June, by undercover police officers to see whether he was prepared to sell heroin.
In response to each telephone call the undercover police officer making the call met the appellant at the appointed rendezvous and was supplied with heroin; in all about one and a half grams of heroin were supplied.
Exclusion of admissible evidence
In R v Smurthwaite [1994] 1 All ER 898 the appellants in two separate cases, S and G, were each charged with soliciting a person to murder the appellant's spouse. In both cases the person solicited was an undercover police officer posing as a contract killer. It was alleged that S wished to have his wife killed because he could not face continuing with a marriage that he considered a sham and believed that divorce proceedings would expose certain financial dealings known to his wife but unknown to the Inland Revenue. He was alleged to have made arrangements with two men, who were in fact undercover police officers, for his wife to be killed for £20,000, half to be paid before the murder and half later. S paid £10,000 to one of the officers and was then arrested. The Crown's case depended upon secret tape recordings of meetings held between the undercover officers and S. G was alleged to have asked 0 for help in arranging for the murder of her husband because of his conduct towards her. 0 informed the police and a meeting was arranged between G, 0 and an undercover police officer posing as a contract killer. The undercover officer secretly tape-recorded the second and subsequent meetings between himself and G. At their trials the appellants' defence was that in neither case had there been any intention that a murder should actually be carried out and that the appellants had been intimidated by the supposed contract killers and had made a pretence of going along with the murder plans out of fear. In addition G submitted that evidence of the recorded conversations should be excluded under s. 78(a) of the Police and Criminal Evidence Act 1984 but the judge ruled that the evidence was admissible. Under s. 78 the court had a discretion to refuse to allow prosecution evidence to be admitted if it appeared that, 'having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it'. The judge in S's trial ruled that the evidence of the recorded conversations should be admitted. Both appellants were convicted. They appealed, contending that any prosecution evidence that included an element of entrapment or that came from an agent provocateur or was obtained by a trick should be excluded by the trial judge under s. 78. The appellants submitted that the undercover officers were agents provocateurs because if they had not come on the scene the appellants would not have sought to have their spouses killed and by posing as contract killers they had obtained the recorded evidence by means of entrapment or a trick.
Held - A judge had no discretion to exclude otherwise admissible evidence merely on the ground that it had been obtained improperly or unfairly and the evidential requirement in s. 78 of the 1984 Act that prosecution evidence might be excluded having regard to the circumstances in which it was obtained had not altered the substantive rule of law that entrapment or the use of an agent provocateur did not per se afford a defence in law to a criminal charge. However, if the judge considered that in all the circumstances the obtaining of the evidence in that way would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, he could exclude it. Accordingly, it was not open to the appellants to claim that had it not been for the undercover officers acting as agents provocateurs they would not have solicited the murder of their spouses and on the facts the tape-recordings were in each case an accurate and unchallenged record of the actual offence being committed. They had accordingly been properly admitted in evidence. The appeals would therefore be dismissed.
In Smurthwaite the court gave guidance as to factors that should be considered before evidence obtained through entrapment should be admitted. These factors include: was the officer acting as agent provocateur in the sense that he was enticing the defendant to commit an offence? Did the evidence consist of admissions to a completed offence or did it consist of the actual commission of the offence? Was there an unassailable record of what occurred or was it strongly corroborated? Did the officers use their undercover roles in questioning the suspects in order to circumvent the PACE Codes? (This was a matter to be considered in deciding whether to admit the officers' evidence.)
Prosecutions based on evidence obtained by entrapment conducted other than by police officers are also subject to the guidelines laid down in Smurthwaite.
In R v Shannon [2000] CLR 1001, a journalist posed as an Arab sheikh in an elaborate undercover operation to get the suspect to supply drugs. All the evidence was excluded, as it would deprive the defendant of the fair trial guaranteed by Article 6 of the European Convention on Human Rights. The Court of Appeal repeated the point that s. 78 of the 1984 Act allowed trial judges a wide discretion to assess the effect of evidence obtained by entrapment on the fairness of the proceedings.
In Teixeira de Castro v Portugal (1998) 28 EHRR 101, the European Court of Human Rights (subject to the following two qualifications) held that the use of undercover agents is not incompatible with Article 6 of the Convention (right to a fair trial). Those qualifications were that:
their use must be restricted and safeguards observed to prevent abuse;
their actions must not exceed passive surveillance.
In Nottingham City Council v Amin above, two police officers, posing as members of the public, flagged down the defendant who was a taxi-driver and in doing so obtained evidence that he was plying for hire in the wrong area. He was charged with plying for hire without a vehicle licence. Relying on para. 38 of the judgment in Teixeira de Castro v Portugal, the defendant contended that the police constables had not confined themselves to investigating whether a criminal offence was being committed in an essentially passive manner and were to be regarded as having incited him to commit the offence, thereby rendering the proceedings as a whole unfair. The court held that on the basis of the facts of the defendant's case, it could not be concluded that he had been pressured or incited into committing an offence. Therefore it could not be concluded on the facts that the admission of the evidence of the police constables would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it.
Similarly, in a case involving test purchases of controlled drugs by undercover police officers, the Court of Appeal held that, under the provisions of human rights legislation generally, matters of admissibility of evidence were to be decided by domestic courts: R v Elwell, R v Derby [2001] All ER (D) 248.
The Court of Appeal has made it clear that evidence of undercover police officers, where it was alleged they had been acting as agents provocateurs, would not be excluded in circumstances where they had done no more than 'give the defendant an opportunity to break the law' of which the defendant had freely taken advantage (R v Breen (2001) LTL 18).