R v Looseley

JurisdictionEngland & Wales
JudgeLord Justice Kennedy
Judgment Date17 May 2001
Neutral Citation[2001] EWCA Crim 1214
Docket NumberCase No: AG Ref.3 of 2000
CourtCourt of Appeal (Criminal Division)
Date17 May 2001

[2001] EWCA Crim 1214



Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Kennedy

Mr Justice Curtis and

Mr Justice Hughes

Case No: AG Ref.3 of 2000

Attorney General's Reference No 3 of 2000

David Perry [Mr. D. Atkinson] (instructed by Treasury Solicitor) for the Crown

Ben Emmerson QC and Alistair Munt (for the Respondents)

Lord Justice Kennedy

Introduction and Point of Law


Where a person tried on indictment has been acquitted section 36(1) of the Criminal Justice Act 1972 enables the Attorney General to refer to this court for its opinion a point of law which has arisen in the case. The accused with whom we are concerned was alleged to have supplied heroin to under cover police officers on two occasions in April 1999. At the start of his trial in the Crown Court in November 1999 it was submitted on his behalf in the absence of the jury that the officers had incited him to commit the offences, and that the proceedings against him should be stayed. The trial judge accepted that submission. The prosecution then offered no evidence, and the accused was acquitted. The point of law which the Attorney General now asks us to consider is -

"In a case involving the commission of offences by an accused at the instigation of under cover police officers, to what extent, if any, have:

i. The judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984; and

ii. the power to stay the proceedings as an abuse of the court;

been modified by article 6 of the European Convention

on Human Rights and the jurisprudence of the European

Court of Human Rights?"


Proceedings against two co-accused have been stayed pending the result of these proceedings.

English Law prior to 1998


In R v Sang [1980] AC 402 the House of Lords made it clear that although a trial judge had a jurisdiction to exclude evidence which was more prejudicial than probative he could not exclude relevant admissible evidence simply because it was obtained by improper or unfair means, such as entrapment by an agent provocateur. At 431G Lord Diplock said -

"What is unfair, what is trickery in the context of the detection and prevention of crime, are questions which are liable to attract highly subjective answers."


At 432B he approved the authorities indicating that there is no defence of entrapment known to English law and continued -

"Many crimes are committed by one person at the instigation of others. From earliest times at common law those who counsel and procure the commission of the offence by the person by whom the actus reus itself is done have been guilty themselves of an offence, and since the abolition by the Criminal Law Act 1967 of the distinction between felonies and misdemeanours, can be tried, indicted and punished as principal offenders. The fact that the counsellor and 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 of which he is charged are present in his case.


For present purposes it is unnecessary to cite from the other speeches, but it is important to recognise that long before 1980 it was appreciated that members of the public might need to be protected from the activities of under cover police officers and others. The matter was considered by the Royal Commission on Criminal Procedure in 1929, the Home Office issued guidelines in 1969 and in 1984, with the advent of the Police and Criminal Evidence Act, the Association of Chief Police Officers issued further guidelines to assist in briefing any police officer assigned to work as a test purchase officer. The first two paragraphs of the "Instruction to Test Purchase Officer" read -

"1. A Police Officer must not act as an 'agent provocateur'. This mean he/she must not incite or procure … a person, nor through that person anybody else … to commit an offence, nor an offence of a more serious character, which that person would not have otherwise have committed.

2. However, a Police Officer is entitled to join a conspiracy which is already in being, or an offence which is already 'laid on', for example, where a person had made an offer to supply goods, including drugs, which involve the commission of a criminal offence."


The Instruction concludes with a reference to section 78(1) of the 1984 Act which provides that -

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."


In DPP v Marshall [1988] 2 All E R 683 police officers in plain clothes purchased small quantities of alcohol from the defendant's shop. He was not licensed to sell alcohol other than by the case. When he was prosecuted the magistrates were persuaded to use section 78 to exclude the evidence of the police officers because they had not at the time admitted who they were. In the Divisional Court it was pointed out that the admission of the evidence could have no adverse effect on the fairness of the proceedings, and the case was remitted to the justices with a direction to continue the hearing.


In R v Christou [1992] 1 QB 979 the defendants were caught by an undercover police operation which set up a shop purporting to buy and sell jewellery commercially. Their submission that the police evidence should be excluded pursuant to section 78 was rejected by the Court of Appeal. At 989A Lord Taylor CJ said -

"The trick was not applied to the appellants; they voluntarily applied themselves to the trick. It is not every trick producing evidence against an accused which results in unfairness. There are, in criminal investigations, a number of situations in which the police adopt ruses or tricks in the public interest to obtain evidence."

What was being stressed was that the defendants were free to choose whether or not to offend.


In Williams v DPP [1993] 3 All E R 365 the police left in the street a van containing dummy cartons of cigarettes which the defendants removed from the van. On their behalf it was contended that the police evidence should be excluded because they had unfairly put temptation in the way of the defendants. That was rejected at trial and in the Divisional Court, reference being made to Christou.


In Smurthwaite and Gill [1994] 98 Cr App R 437 the Court of Appeal considered appeals by two defendants each separately convicted of soliciting to murder, the person solicited in each case being an undercover police officer posing as a contract killer. At 440 Lord Taylor CJ, giving the judgment of the court, said that section 78 "has not altered the substantive rule of law that entrapment or the use of an agent provocateur does not per se afford a defence in law or to a criminal charge." A little later he continued -

"However, that is not to say that entrapment, agent provocateur, or the use of a trick are irrelevant to the application of section 78. The right approach to the 1984 Act, a codifying Act … is simply to examine the language of the relevant provision in its natural meaning and not to strain for an interpretation which either reasserts or alters the pre-existing law. Viewed in that way, the phrase emphasised by (counsel) clearly permits the Court to have regard to 'the circumstances in which the evidence was obtained' and to exclude it, but only if it 'would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it'. Thus the fact that the evidence has been obtained by entrapment, or by agent provocateur, or by a trick does not of itself require the judge to exclude it …. In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors which the judge may take into account are as follows:

Was the police officer acting as agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed?

What was the nature of any entrapment?

Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence?

How active or passive was the officer's role in obtaining the evidence?

Is there an unassailable record of what happened, or is it strongly corroborated?"


Leaving section 78 aside for a moment, in ex parte Bennett [1994] 1 AC 42 the House of Lords made it clear that the High Court or the Crown Court can enquire into the question of how the defendant was brought into the jurisdiction, and can stay proceedings where extradition procedures have been outflanked. Lord Griffiths at 62A held that the power to do arose –

"because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour which threatens either basic human rights or the rule of law."


As Neill LJ said in the subsequent case of Beckford [1996] 1 Cr App R 94 at 100F (a case concerned with destruction of evidence) -

"The constitutional principle which underlines the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions. In the words of Lord Devlin in Connelly v DPP… the courts have 'an...

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