The problem with entrapment

Oxford Journal of Legal Studies

Volumn 26, Issue 2, 2006, Pages 351-376

  Squires, Dan ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 33745686756     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql007     Document Type: Article

References (177)

1. [2001] 1 WLR 2060. R v Looseley and Attorney-General's Reference (No. 3 of 2000) were two cases heard at the same time by the House of Lords and a single judgment given for both. In the discussion that follows I will refer to the decision as a whole as 'Looseley'. If a distinction is being drawn between the facts of the two cases, I will refer specifically to the defendant in 'Attorney-General's Reference' or to Looseley himself.
2. Ibid at para 1.
3. Ibid.
4. Ibid at para 2.
5. See ibid at paras 2-4.
6. See also R v Latif and Shahzad [1996] 1 WLR 104 at 110 and 112
7. DPP v Marshall [1988] 3 All ER 683 at 684
8. and Teixeira de Castro v Portugal (1999) 28 EHRR 101 at para 36.
9. The word 'entrapment' it is not always used uniformly. Some courts and commentators refer to strategies they regard as wrongful as 'entrapment' (see e.g. R v Looseley, above n 1 at paras 1 and 36 A. Choo 'A Defence of Entrapment' (1990) 53 MLR 453
10. and A. Ashworth 'What is wrong with Entrapment?' (1999) Sing JLS 293).
11. The word 'entrapment' is, however, also used to refer to any strategy that offers an individual an opportunity to commit an offence, which may be regarded as acceptable or unacceptable (see the Australian case of Ridgeway v The Queen (1995) 184 CLR 19 at 92 per McHugh J;
12. D. Birch 'Excluding Evidence from Entrapment: What is "Fair Cop"?' [1994] CLP 73). I shall reserve the word 'entrapment' for law enforcement strategies that the courts consider improper. I use the term 'proactive policing' to describe the wider category of operation in which undercover officers take part in criminal offences with defendants.
13. Proactive policing thus includes instances of 'entrapment', but also covers offering defendants 'opportunities' to act, which are viewed as acceptable. The phrase 'proactive policing' is used in this way by G. Dworkin 'The Serpent Beguiled me and I did eat: Entrapment and the Creation of Crime', (1985) 4 Law and Philosophy 17 at 17.
14. R v Looseley, above n 1 at para 78.
15. On the meaning of offering an 'opportunity' see ibid at para 50 et seq. and discussion below.
16. Ibid at para 81.
17. Ibid at para 116.
18. [1980] AC 402.
19. (1994) 98 Cr App R 437.
20. (1994) 98 Cr App R 209.
21. Above n 5.
22. [2000] 1 WLR 1071.
23. Above n 5.
24. In earlier cases, such as R v Smurthwaite; R v Gill, above n 11
25. and Williams and O'Hare v DPP, above n 12, the courts considered whether to exclude evidence pursuant to the Police and Criminal Evidence Act 1984, s 78. Following the House of Lords' decision in R v Latif and Shahzad, above n 5, the courts view a stay of proceedings as the appropriate remedy.
26. One potential future controversy is whether traps not aimed at a particular person are ever acceptable (cf. Lord Hoffmann in R v Looseley, above n 1 at para 65 and A. Ashworth 'Re-drawing the Boundaries of Entrapment' (2002) Crim LR 161 at 174-5).
27. Other issues on which there remains some doubts are the disclosure of material to defendants who wish to claim that they have been entrapped (see Lewis v United Kingdom (ECHR, 25 November, 2003)
28. and R v Lewis [2005] EWCA Crim 859) and the approach that ought to be taken to entrapment instigated by private parties rather than the police
29. (see R v Hardwicke and Thwaites (2001) Crim LR 217,
30. v Shannon [2001] 1 WLR 51,
31. and Shannon v United Kingdom (ECHR, 6 April, 2004)).
32. See, e.g. Choo, above n 6
33. Andrew Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (1993) ch 6
34. Birch, above n 6
35. G. Robertson QC 'Entrapment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?' (1994) Crim LR 805
36. Andrew Ashworth, The Criminal Process: An Evaluative Study (2nd edn, 1998) at 110-15
37. And post-Looseley, see Ashworth, above n 17
38. D. Ormerod and A. Roberts 'The Trouble with Teixeria: Developing a Principled Approach to Entrapment' (2002) 6 E & P 77
39. and Ashworth, 'Testing Fidelity to Legal Values' in S. Shute and A. Simester (eds), Criminal Law Theory: Doctrines of the General Part (2002).
40. See R v Looseley, above n 1 at para 1.
41. Ibid at para 100.
42. See R v Latif, above n 5 at 112.
43. L.M. Seidman 'The Supreme Court, Entrapment, and Our Criminal Justice Dilemma', Sup. Ct. Rev. 1981 111 (1982).
44. See R v Looseley, above n 1 at paras 16 and 104.
45. See Choo, above n 18 at 14. Further on 'abuse of process doctrine' see R v Looseley above n 1 at paras 38-41.
46. R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42 at 65.
47. R v Latif, above n 5 at 112.
48. See R v Looseley, above n 1 at para 25.
49. Lord Steyn stated, in Latif, that if proceedings were never stayed following entrapment, 'the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies' (above n 5 at 112).
50. See R v Horseferry Road Magistrates Court, ex p Bennett, above n 25.
51. Further on abuse of process in cases of 'delay' or 'police impropriety at the investigatory stage' see Choo, above n 18.
52. Lord Nicholls stated: 'police conduct which brings about, to use the catch phrase, state-created crime is unacceptable and improper' (R v Looseley, above n 1 at para 19).
53. Lord Hoffmann stated: 'the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state has itself caused to transgress' (ibid at para 36.) The Canadian Supreme Court held that the key question in cases of entrapment is whether a case involved 'the manufacture of criminal conduct' or merely the provision of an 'opportunity for the commission of crime' (R v Mack (1988) 67 CR (3d) 1 at para 127).
54. R v Looseley, above n 1 at para 50.
55. Whether a crime would have been committed absent the police is also referred to in Teixeira de Castro v Portugal, above n 5 at para 49
56. R v Smurthwaite; R v Gill, above n 12 at 440
57. and R v Mack, above n 29 R v Looseley, above n 1 at paras 121-3.
58. R v Looseley, above n 1 at para 101.
59. A similar approach is taken by the European Court of Human Rights, see Teixeira de Castro v Portugal, above n 5 at para 39
60. and Eurofinacom v France (ECHR, 7 September 2004) at para 15.
61. Above n 12.
62. Above n 14 at 1077.
63. See also R v Looseley, above n 1 at para 50.
64. R v Looseley, above n 1 at para 92.
65. Ibid at para 23. Lord Nicholls explained the 'unexceptional opportunity' test as follows: 'the yardstick for the purpose of this test is ... whether the police conduct preceding the commission of the offence was not 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 a 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'.
66. See also ibid at para 55 per Lord Hoffmann.
67. Ibid at para 113.
68. Ibid.
69. See the judgment of the Court of Appeal in R v Looseley (unreported 13 April, 2000) at para 27.
70. R v Latif, above n 5 at 111 and 113.
71. R v Looseley, above n 1 at para 116.
72. Lord Scott expressed skepticism as to whether the opportunity presented to the defendant was indeed an 'extraordinary' one (ibid at para 127). Without evidence it is difficult to know whether the intuition of Lord Scott or of the majority of their Lordships was more likely to be correct as to the opportunities which ordinarily confront those who deal in contraband cigarettes.
73. For an argument that a background of severe deprivation should give rise to a defence in the ordinary criminal law, see R. Delgado '"Rotten Social Background": Should the Criminal Law Recognize a Defence of Severe Environmental Deprivation?', 3 Law & Ineq. 9 (1985).
74. See A. Reiss and A. Rhodes 'The Distribution of Juvenile Delinquency in the Social Class Structure', 26 Am Soc Rev 720 (1961)
75. and E. Glaser, B. Sacerdote and J. Scheinkman 'Crime and Social Interactions', 111 Q. J. Econ 507 (1996) for findings that delinquency of individuals is better predicted by the levels of crime surrounding them than other demographic or law enforcement variables.
76. Proactive police operations tend to focus on serious crimes committed for money, such as drug-dealing or bribery (see R v Looseley, above n 1 at para 66).
77. They are also used to deal with licensing violations (see Nottingham City Council v Amin, above n 14,
78. DPP v Marshall, above n 5
79. Ealing LBC v Woolworths PLC [1995] Crim LR 58). While the latter do not involve 'serious' crime, they are offences that only those in certain positions are tempted to commit.
80. For an argument that the behaviour of those in the immediate environment surrounding an individual is likely to have a significant effect on their deciding to commit crime, see D. Kahan 'Social Influence, Social Meaning and Deterrence', 83 Va L Rev 349 (1997).
81. Nottingham City Council v Amin, above n 14 at 1076-7.
82. This passage was referred to approvingly in R v Looseley, above n 1 at paras 53, 59, 70, 99, and 109.
83. Nottingham City Council v Amin, above n 14 at 1077.
84. See Nkosiyana, 1966 (4) SA 655, 658 per Holmes JA cited approvingly in David Ormerod, Smith and Hogan: Criminal Law (11th edn, 2005) at 351.
85. R v Looseley, above n 1 at para 114.
86. See also Eurofinacom v France, above n 31 at para 16.
87. Nottingham City Council v Amin, above n 14 at 1075.
88. Above n 1 at paras 69, 101, 102, and 112.
89. And see Nottingham City Council v Amin, above n 14 at 1077.
90. Above n 12 at 213.
91. Above n 5 at 110.
92. Above n 17 at para 47.
93. Above n 14 at 1081.
94. George Fletcher, Rethinking Criminal Law (1978) at 542.
95. R v Looseley, above n 1 at para 116.
96. Ibid at para 54 discussing the case of Nottingham City Council v Amin, above n 14.
97. R v Looseley, above n 1 at para 4.
98. Ibid at para 54.
99. Ibid at para 102.
100. See also ibid at para 69 per Lord Hoffmann.
101. Sherman v United States, 356 US 369, 372 (1958).
102. R v Looseley, above n 1 at paras 21-23, 29 and 68.
103. This phrase is used by Choo, above n 6 at 455.
104. Williams and O'Hare v DPP, above n 12 at 212.
105. Ibid at 215.
106. Ibid at 212.
107. R v Latif, above n 5 at 111 and 113.
108. Ibid at 109.
109. R v Looseley, above n 1 at para 113.
110. R v Shannon, above n 17 at para 49.
111. R v Looseley, above n 1 at para 81.
112. Ibid at para 92.
113. Ibid at para 67.
114. Ibid at para 65 discussing the case of Williams and O'Hare v DPP, above n 12.
115. Ibid at para 88.
116. Ibid at para 113.
117. See judgment of Court of Appeal in R v Looseley, above n 38 at para 27.
118. R v Looseley, above n 1 at para 88.
119. Their Lordships were distinguishing between Looseley and the defendant in Teixeira de Castro v Portugal, above n 5.
120. It is, though, reminiscent of approaches the law took in earlier periods. Prior to the 19th century, Nicola Lacey has argued, criminal trials were based upon 'the assumption that the jury could recognize criminality when they saw it' ('In Search of the Responsible Subject: History, Philosophy and Social Science in Criminal Law Theory' (2001) 64 MLR 350 at 361.) Lacey argues that the jury assessed defendants' 'character and disposition', to determine whether they were a 'corrigible member of the law-abiding community', (ibid at 362) or an 'incorrigible criminal'.
121. Fletcher, above n 56 at 800, suggests: 'the issue in the legal inquiry is not whether, all things considered, the actor is wicked, but whether a single instance of wrongful conduct warrants the inference that the actor deserves punishment'.
122. A third possible way of justifying the courts' intervention in entrapment cases is that defendants should not be convicted if the police broke the law in order to apprehend them. This is the approach adopted in Australia. In Ridgeway v The Queen, above n 6, the police brought drugs into the country in a plot arranged with the defendant. The High Court of Australia held that the defendant ought not to be convicted for the importation as the police were themselves involved in the drugs' smuggling, an act of 'grave criminality' (ibid at 44). This is not, however, the approach taken to entrapment in the UK or other common law jurisdictions. Latif was a case with similar facts to Ridgeway in which a plot to smuggle heroin was overseen by the police who themselves imported the drug. Lord Steyn dismissed the defendants' claim that their trial was an abuse of process because of the police's illegality, holding that, 'realistically, any criminal behaviour of the customs officer was venial compared to that of [the defendants]' (above n 5 at 113 and endorsed in Looseley, above n 1 at para 70). It is difficult to see why cases should turn on whether the police have themselves committed a crime. It would be difficult to justify the outcome of cases such as Latif or Ridgeway being altered depending on whether the police actually brought heroin into the country in a controlled operation or brought in some legal substance the defendant believed was heroin.
123. Above n 1 at para 60. These factors, according to Lord Hoffmann, are distinct from the concern with whether the police 'caused' the commission of an offence (ibid at para 50).
124. Commentators have also argued that proactive operations carry with them risks of abuse by the police, see J. Heydon 'The Problems of Entrapment' (1973) 32 CLJ 268 at 271-2 and Robertson, above n 18 at 811. There is, however, little evidence referred to by the courts or commentators that the police are more likely to abuse proactive operations than say, when recruiting informants, infiltrating criminal organizations with undercover officers or, indeed, while on the beat.
125. R v Looseley, above n 1 at para 60.
126. Ibid at para 26.
127. Lord Hoffmann regarded proactive operations as particularly appropriate for dealing with 'consensual' crimes, such as drug dealing, bribery or licensing violations (ibid at para 66).
128. Ibid at para 64.
129. Ibid at paras 60-4.
130. Ibid at paras 61 and 65.
131. And for similar analysis see Lord Nicholls ibid at para 27.
132. Ibid at para 65.
133. See Choo, above n 18 at 172.
134. Ibid.
135. The example of the policewoman in the park originally appears in M.L. Friedland 'Controlling Entrapment' (1982) 32 U of Toronto LJ 1 at 24.
136. Friedland, like Choo, did not regard the defendant as being improperly caught. Choo's conclusions were endorsed in Williams and O'Hare v DPP, above n 12 at 214.
137. There is some anecdotal evidence of this occurring. For example, in the 1970s the FBI launched an undercover operation to deal with truck hijacking. Once it became widely known that officers were posing as drivers the numbers of hijacks dramatically decreased. See the testimony of Philip Heymann, Asst Attorney General, Criminal Division, before the Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, 4 March, 1980 at 137 referred to in J. Carlson 'The Act Requirement and the Foundations of the Entrapment Defence', 73 Va L Rev 1011 at n 196 (1987).
138. There has been considerable scholarship on the impact of policing upon inner-city communities. Highly visible uniformed policing, the lack of connection between the community and the police, intrusive and seemingly random (or worse, racially motivated) 'stop and searches' have been blamed for the failure to control crime and for contributing to alienation and disenchantment with the justice system. Such policing damages communities, the police themselves and the perceived legitimacy of the justice system among members of ethnic minorities (see Phillips and Bowling, 'Racism, Ethnicity, Crime and Criminal Justice' in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (3rd edn, 2002)
139. and Lord Scarman, The Scarman Report: The Brixton Disorders (1981)).
140. And for an account of the dangers posed by undercover policing outside of proactive operations, see Gary Marx, Undercover: Police Surveillance in America (1988). Despite the dangers that these policing strategies can generate, there is no suggestion that a defendant should be able to claim that her prosecution is an abuse of process because of them.
141. See Article 8 of the European Convention of Human Rights and e.g. Funke v France (1993) 16 EHRR 297.
142. This was a part of UK law before the Human Rights Act came into force. The police must have 'reasonable grounds' for suspecting a person is carrying articles that have been unlawfully obtained or are unlawfully possessed before conducting a 'stop and search' (Police and Criminal Evidence Act 1984, ss 1-3) and similar rules apply to arrests or searching houses (ibid ss 24-5 and s 8.)
143. See e.g. R v Commissioner of Police of the Metropolis, ex p Rottman [2002] 2 AC 692 para 80 in which the House of Lords held that the suspicion that the defendant had committed a crime justified the invasion of privacy caused by the search of his premises.
144. R v Looseley, above n 1 at para 24.
145. This approach appeared some years earlier in the Canadian case of R v Mack, above n 29, in which the Supreme Court held, at para 75, that, 'the state does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals'.
146. R v Looseley, above n 1 at para 27 (per Lord Nicholls) and at paras 61 and 65 (per Lord Hoffmann)
147. No requirement to establish a prior 'reasonable suspicion' appears in the entrapment doctrine of the US or Australia.
148. R v Looseley, above n 1 at para 65.
149. Ibid referring to Williams and O'Hare v DPP, above n 12.
150. In relation to Looseley himself, the House of Lords did not suggest that before he was approached the police had sufficient grounds to suspect him of drug dealing, only that they reasonably suspected a particular public house, through which he was contacted, was the focal point of the local drug trade (ibid at paras 77-8).
151. The law in Canada operates in a similar manner. Proactive operations can be legitimate even if they are aimed at defendants against whom no reasonable suspicion exists. See R v Barnes (1991) 3 C.R. (4th) 1 and R v Mack, Above n 29 at para 116.
152. Andrew Ashworth refers to a 'principle that individuals should not be subjected to temptation from officials unless there are reasonable grounds for suspicion,' (above n 17 at 169). See also Ormerod and Roberts, above n 18
153. Ashworth, above n 18 at 114
154. Ashworth, above n 17 at 167-9 and 174-5.
155. Though for an argument that testing integrity is an infringement of individuals' autonomy, see J. Carlson 'The Act Requirement and the Foundations of the Entrapment Defence', above n 92.
156. A right not to be punished for a crime 'caused' by the police is also problematic for other reasons. If the right is not breached by the act of the police in offering a temptation, but only the subsequent decision to prosecute, it then becomes unclear what it might mean to say that the
157. H.L.A. Hart, Punishment and Responsibility (1968) at 22.
158. See further ibid esp at 22-4
159. and see also Fletcher, above n 56 esp at 802-7.
160. See Hart, above n 106 at 22.
161. See, for example, S. Messner and R. Rosenfeld, Crime and the American Dream (3rd edn, 2001) who attribute the high crime rates in the US to the rhetoric of the 'American Dream' which valorises material success achieved through open competition in a society in which structural inequalities preclude such success being open to the whole population.
162. For early examples of explanations of crime based on criminal 'subcultures,' see R. Cloward and L. Ohlin, Delinquency and Opportunity: A Theory of Delinquent Gangs (1960)
163. and D. Downes The Delinquent Solution (1966).
164. See for example A. Reiss and A. Rhodes, above n 43
165. and E. Glaser, B. Sacerdote and J. Scheinkman, above n 43.
166. Fletcher, above n 56 at 810.
167. Alan Norrie, Crime, History and Reason (2nd edn, 2001) esp chs 1 and 2.
168. See, e.g. R v Steane [1947] 1 All ER 813
169. and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. See discussion Norrie, above n 113 chapter 3.
170. Norrie argues that the defences of necessity and duress cause the law great difficulty. The scope and even the existence of the defences is unclear, they cannot be located comfortably within standard legal categories and Norrie describes them as a 'Pandora's box' (above n 113 at 172) which threatens to undermine the law's apparent commitment to attributing crime to the individual choices of defendants and not the circumstances in which they found themselves.
171. See in relation to US entrapment doctrine, Seidman above, n 22.
172. See text accompanying nn 43-4.
173. If the inducements the police offer are extraordinarily high for the world an individual inhabits, she will be protected from conviction even if she usually faces some lower level of temptation to commit crime. For example in Attorney General's Reference, above n 1, the defendant was held to be entrapped because the inducements offered to him were different to those he ordinarily confronted. He inhabited a world in which some level of criminality was prevalent, indeed he was involved in the purchase of contraband cigarettes and had sold Class B drugs. He was regarded as 'entrapped' because, the House of Lords held, the opportunity to deal in heroin was not one he ordinarily encountered.
174. There are some crimes that are associated more with the relatively privileged than the less privileged, such as insider-trading or political corruption. If opportunities to commit crime normally associated with backgrounds of privilege are manufactured by the police, those caught will not necessarily be protected from conviction. For example, if officers, attempting to root out political corruption, offered bribes to an elected official of a kind she would ordinarily expect to confront, they may well be found to have acted legitimately. See for example the 'Abscam' operation carried out by FBI agents to determine whether US politicians would accept bribes discussed by Marx, above n 93 at 131-2, 144, 154.
175. That said I know of no cases in which such operations have been considered by the court in the UK. See Ashworth 'Testing Fidelity to Legal Values' above n 18 on Canada and the US.
176. See text accompanying notes 106-14.
177. See text accompanying notes 51-6.