R v Sang (on Appeal from HM Court of Appeal (Criminal Division))

JurisdictionEngland & Wales
JudgeLord Diplock,Viscount Dilhorne,Lord Salmon,Lord Fraser of Tullybelton,Lord Scarman
Judgment Date25 July 1979
Judgment citation (vLex)[1979] UKHL J0725-1
Date25 July 1979
CourtHouse of Lords
Regina (Respondent)
and
Sang (Appellant)

[1979] UKHL J0725-1

Lord Diplock

Viscount Dilhorne

Lord Salmon

Lord Fraser of Tullybelton

Lord Scarman

House of Lords

Upon Report from the Appellate Committee to whom was referred the Cause Regina against Sang, That the Committee had heard Counsel as well on Monday the 21st as on Tuesday the 22nd and Wednesday the 23rd days of May last upon the Petition and Appeal of Leonard Anthony Kimyou Sang of 13 Poynter House, Aberdeen Place, London NW8 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal (Criminal Division) of the 13th day of December 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 13th day of December 1978 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Diplock

My Lords,

1

The appellant was indicted at the Old Bailey before Judge Buzzard and a jury for conspiracy to utter counterfeit American bank notes. On his arraignment he pleaded not guilty to the charge and, in the absence of the jury, alleged, through his counsel, that he had been induced to commit the offence by an informer acting on the instructions of the police, and that, but for such persuasion, he would not have committed any crime of the kind with which he was charged. Faced, as he was, by recent decisions of the Criminal Division of the Court of Appeal that "entrapment" is no defence in English law ( Reg. v. McEvilly & Lee [1974] Crim.L.R. 239; Reg. v. Mealey & Sheridan [1974] 60 Cr.App.R. 59), counsel for the appellant sought to achieve by a different means the same effect as if it were. He submitted that if the judge were satisfied at a "trial within a trial" that the offence was instigated by an agent provocateur acting on the instructions of the police and, but for this, would not have been committed by the accused, the judge had a discretion to refuse to allow the prosecution to prove its case by evidence.

2

In support of this submission counsel was able to cite a number of dicta from impressive sources which, on the face of them, suggest that judges have a very wide discretion in criminal cases to exclude evidence tendered by the prosecution on the ground that it has been unfairly obtained. In addition there is one actual decision of the Court of Criminal Appeal in Reg. v. Payne [1963] 1 All.E.R. 848 where a conviction was quashed upon the ground that the judge ought to have exercised his discretion to exclude admissible evidence upon that ground—though this was not a case of entrapment. Moreover there had also been a recent decision at the Central Criminal Court ( Reg. v. Ameer & Lucas [1977] Crim.L.R. 104) in a case which did involve an agent provocateur where Judge Gilles, after a lengthy trial within a trial, had exercised his discretion by refusing to allow the prosecution to call any evidence to prove the commission of the offence by the accused.

3

In order to avoid what promised to be a lengthy "trial within a trial", which would be fruitless if Judge Buzzard were to rule as a matter of law that he had no discretion to exclude relevant evidence tendered by the prosecution to prove the commission of the offence, even though it had been instigated by an agent provocateur and was one which the accused would never have committed but for such inducement, the judge first heard legal submissions on this question. He ruled that even upon that assumption he had no discretion to exclude the prosecution's evidence. In consequence of this ruling the appellant withdrew his plea of not guilty and pleaded guilty.

4

It is only fair to the police to point out that there never was a trial within a trial. The judge's ruling made it unnecessary to go into the facts relating to the appellant's claim that he was induced by a police informer to commit a crime of a kind which but for such persuasion he would never have committed; so no evidence was ever called to prove that there had been any improper conduct on the part of the police or of the prosecution.

5

The appeal to the Criminal Division of the Court of Appeal (Roskill and Ormrod L.JJ. and Park J.) was dismissed. Their judgment which was delivered by Roskill L.J. includes a helpful and wide-ranging review of the previous cases, embracing not only those in which agents provocateurs had been involved but also those in which the existence of a wide discretion in the judge to exclude any evidence tendered by the prosecution which he considered had been unfairly obtained, had been acknowledged in obiter dicta by courts of high authority. As a result of their examination of these authorities they certified as the point of law of general importance involved in their decision, a much wider question than is involved in the use of agents provocateurs. It is:

"Does a trial judge have a discretion to refuse to allow evidence—being evidence other than evidence of admission—to be given in any circumstances in which such evidence is relevant and of more than minimal probative value?"

6

I understand this question as inquiring what are the circumstances, if there be any, in which such a discretion arises; and as not being confined to trials by jury. That the discretion, whatever be its limits, extended to whoever presides in a judicial capacity over a criminal trial, whether it be held in the Crown Court or in a magistrates' court was expressly stated by Lord Widgery C.J. in Jeffrey v. Black [1977] 3 W.L.R. 895, an appeal by the prosecution to a Divisional Court by way of case stated from magistrates who had exercised their discretion to exclude evidence of possession of drugs that had been obtained by an illegal search of the accused's room by the police. The Divisional Court held that the magistrates had exercised their discretion wrongly in the particular case; but Lord Widgery C.J., while stressing that the occasions on which the discretion ought to be exercised in favour of excluding admissible evidence would be exceptional, nevertheless referred to it as applying to "all the evidence tendered by the prosecution" and described its ambit in the widest terms:

"If the case is such that not only have the police officers entered without authority but they have been guilty of trickery, or they have misled someone, or they have been oppressive, or they have been unfair, or in other respects they have behaved in a manner which is morally reprehensible, then it is open to the justices to apply their discretion and decline to allow the particular evidence to be let in as part of the trial".

7

One or other of the various dyslogistic terms which Lord Widgery uses to describe the kind of conduct on the part of the police that gives rise to a judicial discretion to exclude particular pieces of evidence tendered by the prosecution can be found in earlier pronouncements by his predecessor Lord Parker of Waddington, notably in Callis v. Gunn [1964] 1 Q.B. 495 at 502, where he adds to them false representations, threats and bribes; while unfairness and trickery are referred to in dicta to be found in a judgment of the Privy Council in Kuruma v. The Queen [1955] A.C. 197 at 204, the case which is generally regarded as having first suggested the existence of a wide judicial discretion of this kind. 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. It will not have come as any great surprise to your Lordships to learn that those who preside over or appear as advocates in criminal trials are anxious for guidance as to whether the discretion really is so wide as these imprecise expressions would seem to suggest and, if not, what are its limits. So, although it may not be strictly necessary to answer the certified question in its full breadth in order to dispose of the instant appeal I think that your Lordships should endeavour to do so.

8

Before turning to that wider question however, I will deal with the narrower point of law upon which this appeal actually turns. I can do so briefly. The decisions in McEvilly and Lee and Mealey and Sheridan that there is no defence of "entrapment" known to English law are clearly right. 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 with which he is charged are present in his case.

9

My Lords, this being the substantive law upon the matter, the suggestion that it can be evaded by the procedural device of preventing the prosecution from adducing evidence of the commission of the offence, does not...

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