A Defence of Entrapment
| Author | Andrew Choo |
| Published date | 01 July 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02828.x |
| Date | 01 July 1990 |
A
Defence
of
Entrapment
Andrew
Choo”
Introduction
[Wlhen Eve, taxed with having eaten the forbidden fruit, replied ‘the serpent beguiled me,’
her excuse was, at most, a plea in mitigation and not a complete defence.’
This judicial explanation of the events of the Garden of Eden2 highlights the English
courts’ attitude to the problem of entrapment. In
R
v
Sung,3
the issue before the House
of Lords was what a trial judge should do ‘when he is satisfied that an accused has been
deliberately procured, incited or tricked [by an official of the government] into the
commission of a crime which he would not otherwise have committed.
’4
This practice
of facilitation or incitement, by an official of the government, of the commission of a
crime which the defendant would not otherwise have committed will be referred to as
‘entrapment.
’
The House of Lords in
Sung
held that entrapment could not be taken into
account except in the exercise of the judge’s discretion in sentencing. In this article
I
seek
to expose the flaws in the reasoning of the House of Lords and to examine a number
of
alternative approaches.
In England the issue of entrapment received considerable public attention in 1974 with
the murder of Kenneth Lennon, who prior to his death had confessed to having acted as
an
agent provocateur
for the Special Bran~h.~ There has been, in recent years, great
public awareness in the
US
of the issues associated with entrapment as a result of the
John DeLorean6 and ABSCAM’ affairs.
It should be noted that an attempt to deal with the problem of entrapment in England
is to be found in a circular issued by the Home Office to the police.8 This circular, the
contents of which have received judicial appr~val,~ provides
inter ulia
that ‘[nlo member
of a police force, and no police informant, should counsel, incite or procure the commission
of a crime.’ It was apparently intended that breaches
of
this should lead to internal
disciplinary proceedings,I0 but the extent to which such proceedings are instituted is
unknown. Also noteworthy is the fact that the Law Commission recommended in 1977
the creation of an offence of entrapment.” However, as the concern in this article is not
with how the executive should deal with the problem of entrapment but with how the
*Linacre College, Oxford.
1
2
Genesis
3.
3 [1980]
AC
402.
4
ibid,
425.
5
R
v
Sang
[1980]
AC
402, 446
per Lord Fraser.
See
Report
to
the Home Secretary
@om
the Commissioner of Police of the Metropolis
on
the Actions
of
Police Oficers concerned with the Case
of
Kenneth Joseph
Lennon
(London:
HMSO,
1974);
Robertson,
Reluctant Judas
(London: Temple Smith,
1976).
See
Whelan, ‘Lead
Us
Not into (Unwarranted) Temptation:
A
Proposal
to
Replace the Entrapment Defense
with a Reasonable-Suspicion Requirement’
133
U
Pa LR
1193, 1197-1200 (1985).
Reproduced
in
Law Commission,
Criminal Law: Report
on
Defences of General Application
(Law Corn
No
83)
(London:
HMSO,
1977)
p
68.
R
v
Mealey and Sheridan
(1974)
60
Cr App R
59, 64.
6
7
See
ibid,
1200-1203.
8
9
10
Note
8
above,
5.43.
11
ibid,
5.48-5.52.
7?ze
Modern Law Review
53:4
July
1990 0026-7961
453
The
Modern Law Review
[Vol.
53
judiciary should do
so,
it is unnecessary to consider how efficacious such an offence might
be in controlling entrapment.
l2
The English Approach: Sentencing Considerations Only
R v Sang: Non-Recognition
of
Defence
of
Entrapment
In
R
v
Sang,I3
the House of Lords was confronted with the argument that the trial judge
should have excluded all prosecution evidence of the commission of certain offences if
satisfied that their commission had been incited by an
agent
provocateur.
This argument
was rejected.
It
was held that entrapment was not a defence known to English law, and
that the exclusion
of
all evidence of the commission of the crimes would have been
tantamount to recognition of such a defence.I4 The House of Lords considered that the
trial judge’s sentencing discretion constituted adequate. protection for a defendant who
had committed an offence as the result
of
incitement by an
agent
provocateur.
Thus, it
was held that the fact of entrapment could be taken into account in mitigation of
sentenceI5 and that it was even open to a trial judge to grant the defendant ‘an absolute
or conditional discharge and refuse to make any order for costs against him.’I6
The House of Lords gave two reasons for the view that entrapment was not a defence
in English law, and each of these reasons warrants separate examination.
The first reason outlined by the House of Lords was that neither the
actus
reus
nor
the
mens
rea
of the offence would have been negatived by the fact of entrapment.I7 The
flaws in this argument are obvious. Quite simply, it is incorrect to suggest that a ‘defence’
in criminal law must negative the
actus
reus
or the
mens
rea
of the offence in question.I8
Duress and necessity, for example, are considered defences but it would be extremely
artificial to regard them as negativing
acrus
reus
or
mens
rea.
Indeed, it was recognised
by Lord Hailsham LC in the recent case of
R
v
Howl9
that the defence of duress does
12
13
14
15
16
17
18
19
It is likely to be of doubtful efficacy in view of the effect which the exercise of prosecutorial discretion
can have
on
the initiation of criminal proceedings. Indeed it has been expressly acknowledged by the
New Zealand Court of Appeal that agents provocateurs ‘are seldom, if ever, exposed to any danger of
prosecution, and .
. .
in the unlikely event of being prosecuted, would certainly suffer
no
substantial penalty’:
R
v Phillips [1963] NZLR 855, 858. The point has been noted succinctly by two Canadian commentators
(Shafer and Sheridan, ‘The Defence of Entrapment’ (1970) 8 Osgoode Hall
IJ
277,295): ‘One extremely
important element, little discussed in the texts, is that the police have a large discretion in the decision
whether to arrest or not, including arrests of fellow constables
.
.
.
[I]n charging a policeman or agent
with exceeding his authority in law, the broad police discretion is always a first, and perhaps decisive,
hurdle.’ It is unlikely that administrative law remedies can be used successfully to compel a prosecution:
see generally
R
v
Commis.rioner
of
Police
of
the Metropolis, ex p Blackbum
[
19681 2 QB 118 and
R
v
Commissioner
of
Police
of
the Metropolis, ex p Blackbum
(No
3)
[1973]
1
QB 241. See also
Evans
v
Pesce
and
At? Gen for Alberta (1969) 8 CRNS 201.
[I9801 AC 402.
ibid, 432 per Lord Diplock;
441
per Viscount Dilhorne; 443 per Lord Salmon; 446 per Lord Fraser.
See also
R
v Hanvood [1989] Crim LR 285, in which it was similarly held that because entrapment was
not a substantive defence in English law,
s
78 of the Police and Criminal Evidence Act 1984 could not
be utilised in a case of entrapment to prevent the prosecution adducing evidence of the commission of
the offence. However, the Court of Appeal has expressed reservations about the correctness of this:
R
v Gill
and
Rmuana
[1989] Crim LR 358.
[1980] AC 402,433 per Lord Diplock; 443 per Lord Salmon;
446
per Lord Fraser; 451 per Lord
Scarman.
ibid, 443 per Lord Salmon.
ibid, 432 per Lord Diplock; 443 per Lord Salmon; 445-446 per Lord Fraser.
See Allen, ‘Entrapment: Time for Reconsideration’ (1984) 13(4) Anglo-Am LR 57, 65; Ashworth,
‘Defences of General Application
-
The Law Commission’s Report No 83
-
(3) Entrapment’ [1978]
Crim LR 137, 138; Lanham, ‘Entrapment, Qualified Defences and Codification’ (1984) 4 Oxf J Leg
Studies 437, 439; Orchard, ‘Unfairly Obtained Evidence and Entrapment’ [1980] NZLJ 203,204.
Contra
Wan, ‘The Defence
of
Entrapment’ (1970-71) 13 Crim LQ 313,336 and Wan, ‘Entrapment as a Criminal
Defence’ (1971)
1
Queen’s LJ
3,
29.
[1987]
1
All ER 771.
454
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