Keith Mack
Entrapment is a practice where a law enforcement agent induces a person to commit a criminal offence that they would have otherwise been unlikely or unwilling to commit. In the UK, the law on entrapment is not codified in legislation but has been developed through case law. While there is no absolute prohibition on entrapment in the UK, the courts have the power to stay proceedings as an abuse of process where the actions of the police or other state agents undermine the integrity of the criminal justice system. The key test is whether the police did more than present the defendant with an unexceptional opportunity to commit a crime.
| Characteristics | Values |
|---|---|
| Definition of entrapment | Entrapment is a practice where a law enforcement agent induces a person to commit a criminal offence that the person would have otherwise been unlikely or unwilling to commit. |
| UK law on entrapment | The UK does not have an absolute prohibition on evidence obtained through entrapment. The law on entrapment is not codified in legislation but has been developed through case law. |
| Abuse of Process | If it is proven that the police have acted in a way that undermines the integrity of the criminal justice system, the court may stay the proceedings as an abuse of process. |
| Entrapment by Agents | Entrapment is not limited to actions by police officers. |
| R v Loosely (2001) | The House of Lords held that the test for entrapment is whether the police did more than present the defendant with an unexceptional opportunity to commit a crime. |
| R v Shannon (2001) | The Court of Appeal held that entrapment occurs when state agents have acted in a way that is likely to cause an offence by a person who would not have committed it otherwise. |
| R v Latif [1996] | Lord Steyn stated that the court should exercise its jurisdiction to stay proceedings on the grounds of entrapment, where the judge considers that the bringing of the prosecution 'amounts to an affront to the public conscience'. |
| Undercover Operations Code of Practice | All UK police authorities and HM Customs and Excise have jointly issued an Undercover Operations Code of Practice. |
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What You'll Learn
UK law on entrapment is not codified in legislation
In the UK, the law on entrapment is not codified in legislation but has been developed through case law. There is no absolute prohibition on evidence obtained through entrapment, which means that even if entrapment is proven, it does not automatically lead to the exclusion of the evidence or the acquittal of the defendant.
The leading case on entrapment is R v Loosely [2001] UKHL 53, which held that the test for entrapment is whether the police did more than present the defendant with an unexceptional opportunity to commit a crime. This case concerned the actions of undercover police officers carrying out test purchase operations. The House of Lords concluded that it would be unfair and an abuse of process if a person had been incited or pressured by an undercover police officer into committing a crime that they would not otherwise have committed.
In R v Shannon (2001), the Court of Appeal held that entrapment occurs when state agents have acted in a way that is likely to cause an offence by a person who would not have committed it otherwise. The court has the power to stay proceedings as an abuse of process where the actions of the police or other state agents undermine the integrity of the criminal justice system.
In R v Latif [1996] 1 WLR 104, Lord Steyn stated that the court should exercise its jurisdiction to stay proceedings on the grounds of entrapment where the judge considers that the bringing of the prosecution 'amounts to an affront to the public conscience'.
A different and distinct type of entrapment—informant entrapment—was recognised by the Court of Appeal in Wilson. The Court held that there was a judicial discretion to stay proceedings where an offence was incited by an informer.
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No Absolute Prohibition on evidence obtained through entrapment
In the UK, the law on entrapment is not codified in legislation but has been developed through case law. There is no absolute prohibition on evidence obtained through entrapment. This means that even if entrapment is proven, it does not automatically lead to the exclusion of the evidence or the acquittal of the defendant.
The leading case on entrapment is R v Loosely [2001] UKHL 53. The House of Lords held that the test for entrapment is whether the police did more than present the defendant with an unexceptional opportunity to commit a crime. In other words, it would be acceptable for officers to provide a person with an unexceptional opportunity to commit a crime, and the person then freely took advantage of that opportunity. This is also supported by R v Shannon (2001), where the Court of Appeal held that entrapment occurs when state agents have acted in a way that is likely to cause an offence by a person who would not have committed it otherwise.
In R v Latif [1996] 1 WLR 104, Lord Steyn stated that the court should exercise its jurisdiction to stay proceedings on the grounds of entrapment, where the judge considers that the bringing of the prosecution 'amounts to an affront to the public conscience'. However, the burden is on the accused to show, on a balance of probabilities, that they are entitled to a stay of proceedings.
It is important to note that entrapment is not limited to actions by police officers and can also involve private individuals or informants. In these cases, the court may still consider whether the conduct of the private individual amounted to inciting or instigating a crime.
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Abuse of Process
In the UK, the law on entrapment is not codified in legislation but has been developed through case law. While there is no absolute prohibition on entrapment, the courts have the discretionary power to stay proceedings as an abuse of process where the actions of the police or other state agents undermine the integrity of the criminal justice system. This is a power that should be used sparingly and only in exceptional circumstances.
The burden of proof rests on the defendant to demonstrate that the case cannot proceed, and that it would be impossible to give them a fair trial. In R v Shannon (2001), the Court of Appeal held that entrapment occurs when state agents have acted in a way that is likely to cause an offence by a person who would not have committed it otherwise. The court may also consider whether the police did more than present the defendant with an unexceptional opportunity to commit a crime.
In addition, abuse of process can occur when there is a manipulation of procedure, such as to avoid a statutory time limit on bringing proceedings, or because a defendant has elected trial. Prosecutors must be able to justify their decisions in accordance with the Code for Crown Prosecutors.
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Entrapment by Agents
In the UK, the law on entrapment is not codified in legislation but has been developed through case law. There is no absolute prohibition on evidence obtained through entrapment. This means that even if entrapment is proven, it does not automatically lead to the exclusion of the evidence or the acquittal of the defendant.
Entrapment is not limited to actions by police officers. In R v Shannon (2001), the Court of Appeal held that entrapment occurs when state agents act in a way that is likely to cause an offence by a person who would not have committed it otherwise. The key test is whether the police did more than present the defendant with an unexceptional opportunity to commit a crime.
The House of Lords in Loosely concluded that it would be unfair and an abuse of process if a person had been incited or pressured by an undercover police officer into committing a crime they would not otherwise have committed. It would not be objectionable if the officer, behaving as an ordinary member of the public, gave a person an unexceptional opportunity to commit a crime, and the person then freely took advantage of that opportunity.
The Court of Appeal in Wilson recognised a different and distinct type of entrapment—informant entrapment. The court held that there was a judicial discretion to stay proceedings where an offence was incited by an informer. However, if entrapment took place without the knowledge of law enforcement agencies, an argument alleging an abuse of process could not be applied to that aspect of the case.
In practice, the problem for defendants in private entrapment cases is that any argument regarding exclusion of evidence or an abuse of process is likely to fail unless there is specific criticism of the police or the Crown Prosecution Service relating to how the evidence was obtained.
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R v Shannon (2001)
In the UK, the law on police entrapment is not codified in legislation but has been developed through case law. There is no absolute prohibition on evidence obtained through entrapment, meaning that even if entrapment is proven, it does not automatically lead to the exclusion of evidence or the acquittal of the defendant. However, if it is proven that the police have acted in a way that undermines the integrity of the criminal justice system, the court may stay the proceedings as an abuse of process.
Shannon's primary defence was self-defence, and he also relied on a lack of the necessary intent for the murder charge, which succeeded. The appeal raised a difficult point of law on self-defence in relation to the conviction for manslaughter. The background to the case was that Shannon and the deceased, Meredith, were both employed by a firm that held mock auctions. Shannon was the head of his team, and Meredith was a member of his team, but there had been considerable trouble with him, including an incident over a sum of £1,000 mistakenly paid to Meredith by a bank. After this incident, Shannon's team refused to work with Meredith, and he was transferred to another team, leading to bad feelings all around.
The learned judge dealt with the relevant evidence and the law and left the following question to the jury: "Has the prosecution satisfied you that Mr Shannon used more force than was reasonable in the circumstances? Because that goes solely to the question: Did he lawfully kill Mr Meredith?". Mr Fox Andrews, Shannon's defence, argued that the judge ought to have invited the jury to consider Shannon's state of mind at the moment of stabbing and that this obscured the issue of intent.
In the Court of Appeal, Potter LJ stated that it is insufficient that the unfairness complained of relates to the fact that the defendant would not have committed the crime but for the incitement of others, unless the behaviour of the police or the prosecuting authority has been such as to justify an abuse of process. Therefore, the key issue in an application for a stay of proceedings on the grounds of abuse of process or exclusion of evidence is the conduct of the police or prosecuting authority.
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Frequently asked questions
Police entrapment is when a law enforcement agent induces a person to commit a criminal offence that they would have otherwise been unlikely or unwilling to commit.
No, the UK does not have an absolute prohibition on evidence obtained through entrapment. However, if it is proven that the police have acted in a way that undermines the integrity of the criminal justice system, the court may stay the proceedings as an abuse of process.
The law on entrapment in the UK is not codified in legislation but has been developed through case law. The leading case on entrapment is R v Loosely [2001] UKHL 53.
To prove entrapment, it must be shown that the police did more than present the defendant with an unexceptional opportunity to commit a crime. The court will consider factors such as the type of crime, the persistence of the police, and whether an average person would have been induced to commit the offence.
