R v Looseley

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date25 Oct 2001
Neutral Citation[2002] UKHRR 333,[2001] UKHL 53

[2001] UKHL 53


Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Hoffmann

Lord Hutton

Lord Scott of Foscote

(Appellant) (On Appeal From the Court of Appeal (Criminal Division) Attorney General's Reference Number 3 of 2000

My Lords,


Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen.


These propositions, I apprehend, are not controversial. The difficulty lies in identifying conduct which is caught by such imprecise words as lure or incite or entice or instigate. If police officers acted only as detectives and passive observers, there would be little problem in identifying the boundary between permissible and impermissible police conduct. But that would not be a satisfactory place for the boundary line. Detection and prosecution of consensual crimes committed in private would be extremely difficult. Trafficking in drugs is one instance. With such crimes there is usually no victim to report the matter to the police. And sometimes victims or witnesses are unwilling to give evidence.


Moreover, and importantly, in some instances a degree of active involvement by the police in the commission of a crime is generally regarded as acceptable. Test purchases fall easily into this category. In Director of Public Prosecutions v Marshall [1988] 3 All ER 683 a trader was approached in his shop in the same way as any ordinary customer might have done. In breach of his licence he sold individual cans of lager to plain-clothes police officers. In Nottingham City Council v Amin [2000] 1 WLR 1071 a taxi was being driven in an area not covered by its licence. The driver accepted plain-clothes police officers as fare paying passengers. Police conduct of this nature does not attract reprobation even though, in the latter case, the roof light on the taxi was not illuminated. The police behaved in the same way as any member of the public wanting a taxi in the normal course might have done. Indeed, conduct of this nature by officials is sometimes expressly authorised by Act of Parliament. The statute creating an offence may authorise officials to make test purchases, as in section 27 of the Trade Descriptions Act 1968.


Thus, there are occasions when it is necessary for the police to resort to investigatory techniques in which the police themselves are the reporters and the witnesses of the commission of a crime. Sometimes the particular technique adopted is acceptable. Sometimes it is not. For even when the use of these investigatory techniques is justified, there are limits to what is acceptable. Take a case where an undercover policeman repeatedly badgers a vulnerable drug addict for a supply of drugs in return for excessive and ever increasing amounts of money. Eventually the addict yields to the importunity and pressure, and supplies drugs. He is then prosecuted for doing so. Plainly, this result would be objectionable. The crime committed by the addict could readily be characterised as artificial or state-created crime. In the absence of the police operation, the addict might well never have supplied drugs to anyone.


I shall return later to the knotty problem of defining, or identifying, the limits of acceptable 'pro-active' conduct by the police. First I must consider where English law now stands on the overall question of entrapment.

The remedy for entrapment


Common law countries differ in the nature of the remedy provided in entrapment cases. In the United States entrapment is a substantive defence in the federal courts. This is based on a presumption of legislative intent. 'Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations': see Sherman v United States (1957) 356 US 369, 372. The issue therefore is one for decision by the jury. The Canadian Supreme Court has adopted a different approach. In Canada the remedy is by way of stay of proceedings: see R v Mack (1988) 44 CCC (3d) 513. In Australia a third approach has found favour. In Ridgeway v The Queen (1995) 184 CLR 19 the High Court declined to follow the Canadian route. A stay is regarded as inappropriate once it is accepted that entrapment is not a substantive defence. But a trial judge has a discretion to exclude evidence of an offence where its commission was brought about by unlawful or improper conduct on the part of law enforcement officers. Likewise, in New Zealand the court has an inherent jurisdiction to exclude evidence so as to prevent an abuse of process by the avoidance of unfairness: see Police v Lavalle [1979] 1 NZLR 45


The judicial response to entrapment in this country before R v Sang [1980] AC 402 can be summarised as follows. Entrapment attracted expressions of judicial disapproval, notably by Lord Goddard CJ in Brannan v Peek [1948] 1 KB 68, 72, and Lord Parker CJ in R v Birtles [1969] 1 WLR 1047, 1049, but it did not furnish a substantive defence: see R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App R 59. Although not constituting a defence, in some cases judges excluded evidence in entrapment cases: R v Foulder [1973] Crim LR 45, R v Burnett [1973] Crim LR 748 and R v Ameer [1977] Crim LR 104. Entrapment was regarded as a mitigating factor in, for instance, R v McCann (1971) 56 Cr App R 359.


In R v Sang [1980] AC 402 your Lordships' House affirmed the Court of Appeal decisions of R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App R 59. The House treated it as axiomatic that entrapment does not exist as a substantive defence in English law. Lord Diplock, at p 432, noted that many crimes are committed by one person at the instigation of others. The fact that the counsellor or procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender: 'both the physical element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in his case'. Likewise, Lord Fraser of Tullybelton observed, at p 446, that all the elements, factual and mental, of guilt are present and no finding other than guilty would be logically possible. The degree of guilt may be modified by the inducement and that can appropriately be reflected in the sentence. Lord Fraser famously added that when Eve, taxed with having eaten forbidden fruit, replied 'the serpent beguiled me', her excuse was at most a plea in mitigation and not a complete defence.


In Sang the House also decided that, leaving aside admissions and confessions, the court is not concerned with how evidence was obtained. It is no ground for the exercise of a trial judge's discretion to exclude evidence that the evidence was obtained as the result of the activities of an agent provocateur, or by other unfair or improper means. That would be to let in the defence of entrapment by the back door. R v Foulder [1973] Crim LR 45, R v Burnett [1973] Crim LR 748 and R v Ameer [1977] Crim LR 104 were wrongly decided. Entrapment is a mitigating factor and no more. Lord Scarman, at [1980] AC 402, 451, stated that the true relevance of official entrapment into the commission of crime is upon the question of sentence, when its mitigating value may be high.


The decision in Sang has not escaped criticism. For present purposes it is sufficient to note that the reasoning of their Lordships was directed at the question whether entrapment constitutes a substantive defence or is a cause for excluding evidence at the trial. But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. Entrapment assumes the defendant did the proscribed act, with the necessary intent, and without duress. But when entrapment occurs, the commission of the offence by the defendant has been brought about by the state's own agents. This is the crucially important difference between cases of entrapment and other cases of instigated crime. In Sang their Lordships were not called upon to consider whether a judge has power to stay criminal proceedings when law enforcement officers have acted in this way. Implicitly, however, they rejected the availability of this judicial remedy in entrapment cases. Lord Scarman said so expressly. He observed that a court is in duty bound to protect itself against abuse of its process, which 'is not this case': see p 455.


In this field English criminal law has undergone substantial development over the comparatively short period of twenty years since Sang was decided. The first development has been statutory. The decision in Sang on the admissibility of evidence obtained unfairly has been reversed by Parliament, by section 78 of the Police and Criminal Evidence Act 1984. Under section 78 the court now has power to exclude evidence...

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