Court of Appeal
| DOI | 10.1177/002201837604000206 |
| Published date | 01 April 1976 |
| Date | 01 April 1976 |
| Subject Matter | Article |
Court
of
Appeal
Comments
on
Cases
ALLEGED
ENTRAPMENT
OF OFFENDERS
R. v.
McEvilly
&
Lee
Information
given to a police officer by a police
informer
led
him
to
believe
that
there
was in existence a
plan
to dispose of a
large
quantity
of
spirits,
the
theft
of
which
had
already
been
planned
or
which
it was
contemplated
would
be stolen in
the
near
future.
The
police officer
met
the
defendants
and
told
them
that
he was
prepared
to dispose
ofa
large
amount
of
the
spirits.
The
defendants
arranged
with
him
the
manner
in
which
the
goods would be
brought
to
him
and
the
way
in which he
would be informed
when
to
expect
delivery. As a result, the offenders
were
caught
red-handed
and
McEvilly was convicted of dishonestly
receiving stolengoods
and
Lee
was
convicted
of
dishonestly
assisting in
the
retention
of
stolen goods.
The
single
judge
granted
them
leave to
appeal
(wrongly, as
the
Court
of
Appeal
thought),
on the
ground
that
evidence
of
the police officer
should
not
have
been
admitted:
R. v.
McEvilly &Lee (60 Cr. App. Rep. 150).
The
first
ground
upon
which
the
appellants
based
their
case was
that
the
police officer was an
agent
provocateur,
in
that,
at
the
time
of
his
conversation
with the
defendants,
no offence
such
as
that
eventually
charged,
namely
dishonest
handling,
had
taken place or could reason-
ably
have been foreseen as likely to take place.
The
most
that
could be
said,
at
the
time
of
that
conversation, was
that
there was a possibility
of
an offence
being
committed
at
some
future
date.
It
was
argued
by
counsel
that
there
was no
certainty
of
the offence
occurring
thereafter
and
that
there was
perhaps
the
probability
of
what
eventually
occurred
never
happening,
but
for
what
the
police officer said
and
did
at
the
time
of
the
conversation.
This
being so, it was
contended
that
the
police
officer's evidence was
either
inadmissible
or,
if
not
strictly inadmissi-
ble, was
of
such
aprejudicial
character
that
the
trialjudge
ought
in
the
exercise ofhis discretion to
have
rejected it.
Counsel
was
able
to cite two
recentoccasions on which,
at
quarter
sessions
and
in
the
Crown
Court,
such
evidence
had
been excluded,
upon
the
principle
of
unfairness; bu t
the
Court
of
Appeal
declared
that,
in those
circumstances,
its
members
would
have
admitted
this evidence.
The
court, relying on
the
decision
of
the
Northern
Ireland
court
inR.
v. Murphy (1965, N.I. 138), held
that,
even
if
there were the possibility
that
the theft,
and
consequently
the
dishonest
handling,
might
not
have taken place,
but
for
the
police
officer's
conversation
with
the
accused, this
did
not
render
his evidence
inadmissible;
not
did
it
mean
that
the
trial
judge
had
to exercise his
discretion
'one
way',
namely
by
excluding
the evidence.
88
COURTS
OF
APPEAL
89
The
Court
of
Appeal reiterated
that
each case
must
turn
on its own
facts;
but
the principle
upon
which such a case will
turn
was clearly
enunciated by Roskill
L.J.,
on
behalf
of the
Court
(at
p. 155):-
'In
a case where, as here, the police evidence shows
that
an
offence
thatan
offence
had
been 'laid on'
and
a
plan
for carryingit
out
was alreadyclearly contemplated, the mere fact
that
...
there
was a possibility
that
the offence as it was ultimately committed
might nothave taken place
but
for the intervention
of
the policeis
notofitselfa
ground
for the trial
judge
to exercise his discretion to
exclude the evidence.'
The
alternative ground
put
forward by the appellants was
that
the
judge,
in allowing
the
evidence to go to the
jury,
should have given
them direction to the effect
that
'entrapment'
was a defence.
In
Smith
&
Hogan's
Criminal
Law
(3rd Ed., p. 150),
itis
stated
thattheAmerican
doctrine
of
entrapment
has no place in English law.
In
R. u.
Wright
&
Cox Uuly 19, 1974), the
Court
of Appeal accepted this
statement
as
accurate.
In
R. u. McEvilly &Lee (supra), the court concluded that, on
the evidence, the case
did
not begin to come wi thin any such doctrineif
it exists.
The
court's opinion
of
the doctrine was therefore pronounced
obiter. But Roskill L.J.
made
it clear
that
counsel
had
'failed to persuade
any
member
of
this court
that
there is such adoctrine in English law.'
RECKLESS DECEPTION
R. v.
Staines
Section 15(4)
of
the
Theft
Act, 1968provides that, for the purposes
of
that
section, which deals with obtaining by deception,
the
word
'deception'
'means
any
deception (whether deliberate or reckless) by
words or conductas to fact or as tolaw.'
InR.
v. Staines (1975, 60 Cr. App.
Rep. 160), one
of
the questions raised was whether the appellant's
conduct
had
been 'reckless'. She
had
entered two shops with aMrs.
Gehr
and
had
bought
goods for which she
had
paid
by cheques signed
by her, in Mrs.
Gehr's
name, on forms taken from Mrs.
Gehr's
cheque
book, which related to an account which
had
been closed some time
before.
On
the back of each cheque she
had
written an address which
was not her address
but
was
that
of Mrs.
Gehr
at
one
time or another.
When
approached
by the police, the appellant
had
said
that
she
had
signed the cheques for Mrs.
Gehr
because the
latter
had
injured
her
hand
and
that
she would
not
have done so,
had
she known
that
there
were no funds in an accountofmeet the cheques. She was chargedwith,
and
convicted of, obtaining property by deception, contrary to s, 15
of
the Act
of
1968. She was
granted
leave to
appeal
by the single judge.
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