House of Lords
| Published date | 01 August 1996 |
| DOI | 10.1177/002201839606000305 |
| Date | 01 August 1996 |
| Subject Matter | House of Lords |
HOUSE
OF
LORDS
AGENT PROVOCATEUR AND ABUSE OF PROCESS
Rv
Latif
and Shahzad
In R v
Latif
and Shahzad
[1995]
1 Cr App R 270; 59 JCL 361, the Court
of Appeal dismissed the appeals against conviction of being knowingly
concerned in the fraudulent evasion of the prohibition on importation of
a controlled drug and of attempting to commit that offence. The House
of Lords has now confirmed the dismissal of those appeals, but on
different grounds. An informer employed by the US Drugs Enforcement
Administration had agreed with Shahzad in Pakistan that heroin should
be imported into the United Kingdom and that the two appellants in this
case should collect it in England. The officer received the heroin in
Pakistan and sent it to England by a customs officer, who also obtained a
visa for Shahzad to enter the United Kingdom, to collect the heroin from
him there. When the two appellants called at the hotel to collect the
heroin, they were arrested and eventually convicted of the offences
charged. Their defence had been that they were incited to commit the
offence by one who was an agent provocateur, who had lured them to
England, so that the prosecution was an abuse of process and the
prosecution evidence should have been excluded as unfair under s 78 of
the PACE Act
1984.
The trial judge rejected these defences. The appeals
were based on three submissions: (I) that the acts which constituted the
actus reus of the offence were not the appellants' acts, but those of the
customs officer who carried the heroin to the UK; (2) the repeated claim
that the prosecution was an abuse of process; and (3) that the prosecution
evidence should have been excluded as unfair under s 78. The Court of
Appeal set out in detail two of the three points as being points of law of
general public importance, but, in the House of Lords, all three points
were argued (as they had been, before the Court of Appeal) and the
House gave its opinion on them. The argument based on the submission
that the evidence should have been excluded as unfair under s 78 was,
however, found not to be self-standing, since a finding that there had been
no abuse of process would entail that there had been no prejudice to the
appellants, so that the argument that the evidence of the customs officer
should have been excluded was bound to fall, on there being such a
finding (which was in fact the finding eventually made by the House). In
essence,therefore, the judgment of the House related to the question whether
the appellants had committed the actus reus of the offence and the
question whether the prosecution was an abuse of process: see
[1996]
1 Cr
App R
104.
The prosecution conceded that the action of the informer and of the
customs officershad not been 'oppressive', but it was contended that the
officers had actively encouraged the appellant Shahzad to commit the
offence and the customs officer who had himself brought the heroin to
England had been guilty of the offence of which Shahzad had been
298
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