House of Lords
|Session 2001- 02
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|Judgments - Regina v Loosely
HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Hoffmann Lord Hutton Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION)
ATTORNEY GENERAL'S REFERENCE NUMBER 3 OF 2000
ON 25 OCTOBER 2001
 UKHL 53
LORD NICHOLLS OF BIRKENHEAD
1. Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is 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. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen.
2. These propositions, I apprehend, are not controversial. The difficulty lies in identifying conduct which is 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 is one instance. With such crimes there is usually no victim to report the matter to the police. And sometimes victims or witnesses are unwilling to give evidence.
3. Moreover, and importantly, in some instances a degree of active involvement by the police in the commission of a crime is generally regarded as acceptable. Test purchases fall easily into this category. In Director of Public Prosecutions v Marshall  3 All ER 683 a trader was approached in his shop in the same way as any ordinary customer might have done. In breach of his licence he sold individual cans of lager to plain-clothes police officers. In Nottingham City Council v Amin  1 WLR 1071 a taxi was being driven in an area not covered by its licence. The driver accepted plain-clothes police officers as fare paying passengers. Police conduct of this nature does not attract reprobation even though, in the latter case, the roof light on the taxi was not illuminated. The police behaved in the same way as any member of the public wanting a taxi in the normal course might have done. Indeed, conduct of this nature by officials is sometimes expressly authorised by Act of Parliament. The statute creating an offence may authorise officials to make test purchases, as in section 27 of the Trade Descriptions Act 1968.
4. Thus, there are occasions when it is necessary for the police to resort to investigatory techniques in which the police themselves are the reporters and the witnesses of the commission of a crime. Sometimes the particular technique adopted is acceptable. Sometimes it is not. For even when the use of these investigatory techniques is justified, there are limits to what is acceptable. Take a case where an undercover policeman repeatedly badgers a vulnerable drug addict for a supply of drugs in return for excessive and ever increasing amounts of money. Eventually the addict yields to the importunity and pressure, and supplies drugs. He is then prosecuted for doing so. Plainly, this result would be objectionable. The crime committed by the addict could readily be characterised as artificial or state-created crime. In the absence of the police operation, the addict might well never have supplied drugs to anyone.
5. I shall return later to the knotty problem of defining, or identifying, the limits of acceptable 'pro-active' conduct by the police. First I must consider where English law now stands on the overall question of entrapment.
The remedy for entrapment
6. Common law countries differ in the nature of the remedy provided in entrapment cases. In the United States entrapment is a substantive defence in the federal courts. This is based on a presumption of legislative intent. 'Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations': see Sherman v United States (1957) 356 US 369, 372. The issue therefore is one for decision by the jury. The Canadian Supreme Court has adopted a different approach. In Canada the remedy is by way of stay of proceedings: see R v Mack (1988) 44 CCC (3d) 513. In Australia a third approach has found favour. In Ridgeway v The Queen (1995) 184 CLR 19 the High Court declined to follow the Canadian route. A stay is regarded as inappropriate once it is accepted that entrapment is not a substantive defence. But a trial judge has a discretion to exclude evidence of an offence where its commission was brought about by unlawful or improper conduct on the part of law enforcement officers. Likewise, in New Zealand the court has an inherent jurisdiction to exclude evidence so as to prevent an abuse of process by the avoidance of unfairness: see Police v Lavalle  1 NZLR 45
7. The judicial response to entrapment in this country before R v Sang  AC 402 can be summarised as follows. Entrapment attracted expressions of judicial disapproval, notably by Lord Goddard CJ in Brannan v Peek  1 KB 68, 72, and Lord Parker CJ in R v Birtles  1 WLR 1047, 1049, but it did not furnish a substantive defence: see R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App R 59. Although not constituting a defence, in some cases judges excluded evidence in entrapment cases: R v Foulder  Crim LR 45, R v Burnett  Crim LR 748 and R v Ameer  Crim LR 104. Entrapment was regarded as a mitigating factor in, for instance, R v McCann (1971) 56 Cr App R 359 .
8. In R v Sang  AC 402 your Lordships' House affirmed the Court of Appeal decisions of R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App R 59. The House treated it as axiomatic that entrapment does not exist as a substantive defence in English law. Lord Diplock, at p 432, noted that many crimes are committed by one person at the instigation of others. The fact that the counsellor or procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender: 'both the physical element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in his case'. Likewise, Lord Fraser of Tullybelton observed, at p 446, that all the elements, factual and mental, of guilt are present and no finding other than guilty would be logically possible. The degree of guilt may be modified by the inducement and that can appropriately be reflected in the sentence. Lord Fraser famously added that when Eve, taxed with having eaten forbidden fruit, replied 'the serpent beguiled me', her excuse was at most a plea in mitigation and not a complete defence.
9. In Sang the House also decided that, leaving aside admissions and confessions, the court is not concerned with how evidence was obtained. It is no ground for the exercise of a trial 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 in the defence of entrapment by the back door. R v Foulder  Crim LR 45, R v Burnett  Crim LR 748 and R v Ameer  Crim LR 104 were wrongly decided. Entrapment is a mitigating factor and no more. Lord Scarman, at  AC 402, 451, stated that the true relevance of official entrapment into the commission of crime is upon the question of sentence, when its mitigating value may be high.
10. The decision in Sang has not escaped criticism. For present purposes it is sufficient to note that the reasoning of their Lordships was directed at the question whether entrapment constitutes a substantive defence or is a cause for excluding evidence at the trial. But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. Entrapment assumes the defendant did the proscribed act, with the necessary intent, and without duress. But when entrapment occurs, the commission of the offence by the defendant has been brought about by the state's own agents. This is the crucially important difference between cases of entrapment and other cases of instigated crime. In Sang their Lordships were not called upon to consider whether a judge has power to stay criminal proceedings when law enforcement officers have acted in this way. Implicitly, however, they rejected the availability of this judicial remedy in entrapment cases. Lord Scarman said so expressly. He observed that a court is in duty bound to protect itself against abuse of its process, which 'is not this case': see p 455.
11. In this field English criminal law has undergone substantial development over the comparatively short period of twenty years since Sang was decided. The first development has been statutory. The decision in Sang on the admissibility of evidence obtained unfairly has been reversed by Parliament, by section 78 of the Police and Criminal Evidence Act 1984. Under section 78 the court now has power to exclude evidence on which the prosecution proposes to rely if, having regard to all the circumstances, the court considers 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 is to have regard include, expressly, the circumstances in which the evidence was obtained.
12. The phrase 'fairness of the proceedings' in section 78 is directed primarily at matters going to fairness in the actual conduct of the trial; for instance, the reliability of the evidence and the defendant's ability to test its reliability. But, rightly, the courts have been unwilling to limit the scope of this wide and comprehensive expression strictly to procedural fairness. In R v Smurthwaite  1 All ER 898, 902, Lord Taylor of Gosforth CJ stated that section 78 has not altered the substantive rule that entrapment does not of itself provide a defence. The fact that the evidence was obtained by entrapment does not of itself require the judge to exclude it. But, in deciding whether to admit the evidence of an undercover police officer, the judge may 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. I do not understand Auld LJ to have been expressing a contrary view in R v Chalkley  2 Cr App R 79, 105-107. Chalkley was not an entrapment case. Most recently in R v Shannon  1 WLR 51, 68, para 39, Potter LJ, as I read his judgment, accepted that evidence may properly be excluded when the behaviour of the police or prosecuting authority has been such as to justify a stay on grounds of abuse of process.
13. Next, the common law also has developed since the decision in Sang. In R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42 your Lordships' House held that the court has jurisdiction to stay proceedings and order the release of the accused when the court becomes aware there has been a serious abuse of power by the executive. The court can 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. Lord Griffiths, at p 62, echoed the words of Lord Devlin that the courts 'cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of law is not abused': see Connelly v Director of Public Prosecutions  AC 1254, 1354. The judiciary should accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that 'threatens either basic human rights or the rule of law'.
14. In Bennett the defendant claimed he had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. It was not an entrapment case. But in R v Latif  1 WLR 104 the House confirmed that the same principle is applicable in entrapment cases: see Lord Steyn, at pp 112-113.
15. These statutory and common law developments have been reinforced by the Human Rights Act 1998. It is unlawful for the court, as a public authority, to act in a way which is incompatible with a Convention right. Entrapment, and the use of evidence obtained by entrapment ('as a result of police incitement'), may deprive a defendant of the right to a fair trial embodied in article 6: see the decision of the European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EHRR 101.
16. Thus, although entrapment is not a substantive defence, English law has now developed remedies in respect of entrapment: the court may stay the relevant criminal proceedings, and the court may exclude evidence pursuant to section 78. In these respects Sang has been overtaken. Of these two remedies the grant of a stay, rather than the exclusion of evidence at the trial, should normally be regarded as the appropriate response in a case of entrapment. Exclusion of evidence from the trial will often have the same result in practice as an order staying the proceedings. Without, for instance, the evidence of the undercover police officers the prosecution will often be unable to proceed. But this is not necessarily so. There may be real evidence, or evidence of other witnesses. Exclusion of all the prosecution evidence would, of course, dispose of any anomaly in this regard. But a direction to this effect would really be a stay of the proceedings under another name. Quite apart from these practical considerations, as a matter of principle a stay of the proceedings, or of the relevant charges, is the more appropriate form of remedy. A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way.
17. I should add that when ordering a stay, and refusing to let a prosecution continue, the court is not seeking to exercise disciplinary powers over the police, although staying a prosecution may have this effect. As emphasised earlier, the objection to criminal proceedings founded on entrapment lies much deeper. For the same reason, entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstance in which it was committed.
18. A further point of principle should be noted. As observed by Auld LJ in R v Chalkley  2 Cr App R 79, 105, a decision on whether to stay criminal proceedings as an abuse of process is distinct from a determination of the forensic fairness of admitting evidence. Different tests are applicable to these two decisions. Accordingly, when considering an application by a defendant to exclude evidence under section 78, courts should distinguish clearly between an application to exclude evidence on the ground that the defendant should not be tried at all and an application to exclude evidence on the ground of procedural fairness. Sometimes a defendant may base his application under section 78 on both grounds. Then the court will need to reach a separate decision on each ground.
Entrapment and the limits of acceptable police conduct
19. As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catch-phrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif  1 WLR 104, 112. In a very broad sense of the word, such a prosecution would not be fair.
20. But what is meant by 'state-created crime'? What is the legal concept underlying oft-repeated expressions such as lure, incite, or instigate? What is the distinction, of relevance in the commission of a crime, which these phrases are seeking to draw? If an undercover policeman asks a known drug supplier for drugs, is he 'luring' the unsuspecting supplier into committing a crime? If not, why not? What does 'lure' mean in this context? By what criteria is a trial judge to distinguish the acceptable from the unacceptable?
21. Questions such as these have generated extensive overseas judicial utterances and also academic literature, both in this country and abroad. The several suggested answers have different emphases and, to a limited extent, different practical consequences. Underlying some of the learning is the notion that expressions such as state-created crime and lure and incite focus attention on the role played by the police in the formation of the defendant's intent to commit the crime in question. If the defendant already had the intent to commit a crime of the same or a similar kind, then the police did no more than give him the opportunity to fulfil his existing intent. This is unobjectionable. If the defendant was already presently disposed to commit such a crime, should opportunity arise, that is not entrapment. That is not state-created crime. The matter stands differently if the defendant lacked such a predisposition, and the police were responsible for implanting the necessary intent.
22. Reasoning such as this, especially in the United States, is a prominent feature of the juridical analysis of why some police conduct is acceptable and other conduct is not. But, even leaving aside the difficulty that predisposition is an inherently speculative inference of fact, this analysis is inadequate as a tool. In particular, taken to its logical conclusion this analysis means that whenever the defendant's predisposition to commit the crime is established there cannot be a defence of entrapment. In the United States the law seems to have been taken this distance : see Hampton v United States (1976) 425 US 484, 489 - 490 per Rehnquist CJ. But surely it is going too far to say that a person who is ready and willing to commit a certain kind of crime can never be entrapped into committing it. As Lamer J observed in R v Mack (1988) 44 CCC (3d) 513, 551, it is always possible that, notwithstanding a person's predisposition, in the particular case it was the conduct of the police which led the defendant into committing the crime. In other words, the existence or absence of predisposition in the individual is not the criterion by which the acceptability of police conduct is to be decided. Predisposition does not make acceptable what would otherwise be unacceptable conduct on the part of the police or other law enforcement agencies. Predisposition does not negative misuse of state power.
23. Accordingly, one has to look elsewhere for assistance in identifying the limits to the types of police conduct which, in any set of circumstances, are acceptable. On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word unexceptional. The yardstick for the purpose of this test is, 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 this nature is 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. McHugh J had this approach in mind in Ridgeway v The Queen (1995) 184 CLR 19, 92, when he said:
24. This is by no means the only factor to be taken into account when assessing the propriety of police conduct. The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is 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 will the court scrutinise the reason for using it. On this, proportionality has a role to play.
25. Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn's formulation of a prosecution which would affront the public conscience is substantially to the same effect: see R v Latif  1 WLR 104, 112. So is Lord Bingham of Cornhill CJ's reference to conviction and punishment which would be deeply offensive to ordinary notions of fairness: see Nottingham City Council v Amin  1 WLR 1071, 1076. In applying these formulations the court has regard to all the circumstances of the case. The following comments may be made on some circumstances which are of particular relevance.
26. The nature of the offence. The use of pro-active techniques is more needed and, hence, more appropriate, in some circumstances than others. The secrecy and difficulty of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations.
27. The reason for the particular police operation. It goes without saying that the police must act in good faith and not, for example, as part of a malicious vendetta against an individual or group of individuals. Having reasonable grounds for suspicion is one way good faith may be established, but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place, such as a particular public house. Sometimes random testing may be the only practicable way of policing a particular trading activity.
28. The nature and extent of police participation in the crime. The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather, this is a recognition that what may be a significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade, whether lawful or unlawful, being carried on by the defendant will not normally be regarded as objectionable.
29. The defendant's criminal record. The defendant's criminal record is unlikely to be relevant unless it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity. As Frankfurter J said, past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing repeated convictions, from which the ordinary citizen is protected: see Sherman v United States (1957) 356 US 369, 383.
The Human Rights Convention
30. The question raised by Attorney General's Reference No. 3 of 2000 is 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 section 78 of the Police and Criminal Evidence Act 1984 or the court's power to stay proceedings as an abuse of the court has been modified by article 6 of the European Convention of Human Rights and the jurisprudence of the European Court of Human Rights. I would answer that question in the negative. I do not discern any appreciable difference between the requirements of article 6, or the Strasbourg jurisprudence on article 6, and English law as it has developed in recent years and as I have sought to describe it.
31. The case of Teixeira de Castro v Portugal (1998) 28 EHRR 101 concerned a conviction for trafficking in heroin, based mainly on statements of two police officers. The European Court of Human Rights held that the necessary inference from the circumstances was that these officers had 'exercised an influence such as to incite the commission of the offence'. The court concluded there had been a violation of the applicant's right to a fair trial under article 6(1). The court's statement of principle, at p 115, in para 36, is not divergent from the approach of English law. I agree with the observations of my noble and learned friend Lord Hoffmann on the court's application of that principle to the facts of that case.
32. For these reasons, and those given by my noble and learned friends Lord Hoffmann and Lord Hutton, I would make the orders Lord Hutton proposes on these two appeals.
LORD MACKAY OF CLASHFERN
33. I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Nicholls of Birkenhead, Lord Hoffman and Lord Hutton. I agree with the orders that Lord Hutton proposes in these two appeals, and with the reasons my noble and learned friends have given for so doing.