ENTRAPMENT AND THE COMMON LAW: IS THERE A PLACE FOR THE AMERICAN DOCTRINE OF ENTRAPMENT?

Published date01 May 1978
DOIhttp://doi.org/10.1111/j.1468-2230.1978.tb00800.x
AuthorN. L. A. Barlow
Date01 May 1978
ENTRAPMENT AND THE COMMON LAW:
IS
THERE A PLACE FOR THE AMERICAN
DOCTRINE
OF
ENTRAPMENT?
IN
a series of recent decisions’ a number of English courts have
ruled that the doctrine of entrapment, which in the United States
may operate as
a
bar to criminal conviction, has no place in English
law.
In
not one of these cases has the juristic basis of the doctrine or
the line of authority founded upon it been examined. The courts
have been content to dismiss the doctrine out of hand simply because
it is “unknown to our law.”’
So
too once was the notion of
voluntariness in confessions, the rule requiring proof beyond reason-
able doubt, the discretion to exclude unfair evidence, the Judges
Rules, the
audi
alteram
partem
rule, the doctrine of Parliamentary
sovereignty, and the rule that the House of Lords is not bound by its
own decisions. Some of these rules were unknown at the turn of the
century; the last mentioned is now only
10
years old. Not one
of
them owe their authority to the Queen in Parliament.
Dicey himself, the champion of parliamentary supremacy, readily
recognised that judicial law-making co-existed with and comple-
mented parliamentary law-making:
A large proportion of English
law is in reality made by the Judges
. . .
.
Judicial legislation is in
short subordinate legislation carried on with Parliament’s assent.”
English judges have of course limited their legislative powers to
certain areas of the law. Their legislative preserve is in fact correla-
tive to the constitutional nature of their position. They have long
assumed power to regulate the procedure of the courts, to define
the relationships between the various organs of government and the
subject, and to protect what they consider to be the superior interests
of the state.
So
the fact that
a
particular legal principle is at one time unknown
to English law should not of itself be a crucial objection to its intro-
duction into our law. Nor is the fact that the principle has been first
conceived by a foreign rather than a local jurist of damning
significance. English law relating to contract, real property, com-
merce, succession, and many other areas, relies heavily upon
foreign sources.
It must then, still remain an open question as to whether the
doctrine of entrapment, which on three occasions has been rejected
without reason by the Court of Appeal and never considered at all
by the House of Lords, will ever find its way into English law.
If
it
is to be excluded it must be because it is found to be jurisprudentially
1
R. Murphy
[1965]
N.I.
138;
R.
v.
McEvilly
[1974] Crim.L.R. 239;
Wright
v.
Cox
(Unreported) C.A. Judgment July 19, 1973, cited in
R.
v.
McEvilly (supra);
(1975)
R.
v.
Mealey,
60 0.App.R. 59,
The Times,
July
29, 1974.
2
R.
v.
Murphy
[
19651
N.I.
138, 150,
per
Lord MacDermott.
3
Dicey,
Law
of
the
Comsliturion
(10th ed., 1959, MacMillan) 6061.
266
May
19781
ENTRAPMENT
AND
THE
COMMON
LAW
267
unsatisfactory, or functionally unsuitable to our system, not because
it has never been part of it or is of foreign origin.
Little has been written about the entrapment doctrine in English
legal literat~re.~ Perhaps this explains the cursory attitude shown
towards it by the present Court of Appeal. This introduces
the purpose of this article which is threefold. First, to examine the
evolution and present standing of the entrapment doctrine in the
United States; secondly, to analyse the legal theory upon which it is
based; and third, to consider whether it should be received into
English law.
One more preliminary observation must be made. Over the past
few decades problems of entrapment have arisen in at least
12
reported cases before English courts. In some cases judges have
condemned but done nothing about the pra~tice.~ In others sentences
have been reducedYs policemen re~rimanded,~ and more recently
some creative trial judges have extended the exclusionary rule
to
reach
entrapment
evidence.
*
This promising development aside,
there is still no uniform judicial prohibition of entrapment practices.O
This is
a
serious gap in the law for it means that the widespread
growth of police undercover detection has been unaccompanied by
corresponding safeguards against abuse. It cannot be doubted that
the greater sophistication of the modern criminal necessitates infil-
tration
of
police agents into the field work of crime. Often under-
cover detection is the only device the police can successfully use
to obtain evidence for prosecutions particularly in regard to con-
sensual criminal activity involving sex, drugs, or liquor. The illegal
4
Brief reference is made to the doctrine by Glanville WilEms in
Criminal Law:
The General Part,
2nd
ed., pp.
786-789,
and by
J.
S.
McClean in Informers and Agents
Provocateurs
[1969]
0im.L.R.
527,
and J.
D.
HeyF in
‘‘
Thz
Problems of
Entrapment
[1973]
C.L.J.
269.
See also
J.
Temkin, Police Traps,”
37
M.L.R.
102
and Brittain.
‘‘
Entrapment: the English Approach
(1974) 124
New L.J.
124.
5
R.
v.
Medey
(1975)
60
Cr.App.R.
59,
The Times,
July
29, 1974;
Browning
v.
T.
W.
H.
Warson
(Rochester) Ltd.
[1953] 1
W.L.R.
1172.
6
R.
v.
Birrles
[1969] 2
All E.R.
1431
(C.A.):
R.
V.
Macro and Others
[1969]
Crim.L.R.
205;
R.
v.
McCann
(1972) 56
Cr.App.R.
359.
7
Brannon
v.
Peek
[
19481 1
K.B.
68.
8
R.
v.
Murphy
[1965]
N.I.
138;
R.
v.
Fodder, Foulkes and Johns
[1973]
Crim.L.R.
45;
R.
v.
Burnett and Lee
[
19731
Crim.L.R.
748;
R.
v.
McEviZly
[
19741
Crim.L.R.
239;
R.
v.
Ameer
and
Lucas
[1977]
Crim.L.R.
104;
see also
R.
v.
O’Shannessy
(Unreported) New Zealand Court of Appeal (C.A.)
78/73,
October
8,
1973;
R.
v.
Capner
[1975] 1
N.Z.L.R.
411;
R.
v.
Willis
and
others
[1976]
Crim.L.R.
127.
9
The extension of the exclusionary rule to embrace evidence obtained as a result
of police entrapment is put in question by the
Court
of Appeal decision in
R.
v.
Mealey
(1975) 60
Cr.App.R.
59,
although this most unsatisfactory authority has not
been followed by the New Zealand Court of Appeal in
R.
v.
Capner
119751 1
N.Z.L.R.
411,
nor,
it would seem, by a differently constituted Court of Appeal
in
the
recent decision of
R.
v.
Willis and others
[
19761
Crim.L.R.
127
where, although the
court approved the view in
Mealey
against recognising the American doctrine of
entrapment, it was prepared to assume the existence of a discretion to implement a
ruling that there had been
no
police encouragement of the appellants’ crimes. More-
over,
R.
v.
Mealey
is
inconsistent with the wide terms of the House of Lords’
judgment in
Selvey
v.
D.P.P.
[19681
W.L.R.
1494
which authorises the exclusion of
any category of
unfair
evidence-see N. L. A. Barlow,
‘‘
Recent Developments
in New Zealand in the Law Relating to Entrapment
[1976]
N.Z.L.J.
304.

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