Recent Judicial Decisions
| Author | Rob R. Jerrard |
| Published date | 01 November 2002 |
| Date | 01 November 2002 |
| DOI | http://doi.org/10.1177/0032258X0207500307 |
| Subject Matter | Article |
ROB R. JERRARD
Retired City
of
London Police
Legal Correspondent
http://hometown.aol.co.uk/robjerrard/myhomepage/law/
policela/policela.htm
Independent Consultant on police; criminal law; and road traffic
E-mail robjerrard@aol.com
RECENT JUDICIAL DECISIONS
Entrapment: abuse of legal process for police to incite
crime
R v LooseLey Attorney-GeneraL's Reference No 3
of
2000
House of Lords
(2001) The Times, 29 October
Incitement; fairness of proceedings; abuse of process;
agent provocateur; exclusion of evidence; Police and
The statutes
The Police andCriminal Evidence Act, s. 78, so far as material
provides:
(I)
In any proceedings the court may refuse to allow evi-
dence 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 proceed-
ings that the court ought not to admit it
...
The facts
The prosecution case against the defendant Looseley was that he
had supplied heroin to an undercover police officer known as
'Rob'. Police mounted an undercover operation because of their
concern about trade in class A drugs.
One focus of the operation was a public house, where Rob
was given Looseley's name and telephone number and told that
Looseley could obtain drugs. Rob telephoned Looseley who
agreed to supply heroin at £30 for half a gram. On three separate
occasions Looseley supplied Rob with quantities of heroin. The
judge refused to stay the proceedings as an abuse of the process
of the court or to exclude the officer's evidence pursuant to s. 78
The Police Journal. Volume 75 (2002) 245
of the Police andCriminal Evidence Act 1984. Looseley then
pleaded guilty.
The acquitted person in the Attorney-General's reference
was also charged with supplying heroin to undercover police
officers who were offering contraband cigarettes for sale at a
housing estate. They were introduced to the acquitted person,
who bought the cigarettes at a bargain price. The officers then
asked him if he could provide them with heroin. He said he
could not get heroin at short notice and that he was 'not really
into heroin' himself, but he eventually obtained drugs from
another source and sold it to the officers.
He subsequently gave them the supplier's telephone number,
and the officers bought more heroin directly from the supplier.
When he was interviewed by the police after his arrest the
defendant said that he had never supplied heroin before, that he
had only become involved because the officers were offering to
sell him cheap cigarettes and so he was doing 'a favour for a
favour'.
What is entrapment?
From the judgment of Lord Nicholls: every court had an inherent
power and duty to prevent abuse of its process. That was a
fundamental principle of the rule of law. By recourse to that
principle, courts ensured that executive agents of the state did
not misuse the coercive, law-enforcement functions of the courts
and thereby oppress citizens of the state. Entrapment was an
instance where such misuse might occur. It was 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, a misuse
of state power and an abuse of the process of the courts. The
difficulty lay in identifying conduct which was 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. Detec-
tion and prosecution of consensual crimes committed in private
would be extremely difficult. Trafficking in drugs was one
instance.
With such crimes there was usually no victim to report the
matter to the police. And sometimes victims or witnesses were
unwilling to give evidence. Moreover, and importantly, in some
instances a degree of active involvement by the police in the
246 The Police Journal. Volume 75 (2002)
commission of a crime was generally regarded as acceptable.
Test purchases from persons openly carrying on a business
fell easily into that category: see
DPP
vMarshall [1988] 2 All
ER 683. Police officers in plain clothes purchased four cans of
lager and a bottle of wine from the respondents' shop. The
respondents were licensed to sell liquor by the case but not to
sell individual cans or bottles of liquor. The respondents were
charged with having sold the lager and the wine without having
the requisite justices' licence, contrary to s. 160 of the Licensing
Act 1964. At the hearing before the magistrates the respondents
contended that the police officers' evidence should be excluded
having 'an adverse effect on the fairness of the proceedings'
since it had been unfairly obtained because the officers had not at
the time of the purchase revealed the fact that they were police
officers. The magistrates accepted that contention and the prose-
cution was unable to proceed. The Director of Public Prosecu-
tions appealed by way of case stated against the magistrates'
decision to exclude the police officers' evidence.
Held -The evidence of the police officers had been wrongly
excluded by the magistrates, since it had not been shown that the
evidence of police officers who made test purchases in plain
clothes would have an adverse effect on the fairness of the
proceedings. The appeal would therefore be allowed and the case
remitted to the magistrates with a direction to proceed with the
hearing of the information.
See also Nottingham City Council v
Amin
[2000] 1 WLR
1071 where the defendant taxi-driver was flagged down in the
street by two police officers in plain clothes. He carried the
officers to their stated destination and accepted payment of the
fare for the journey. The driver was not licensed to ply for hire in
the district in which he collected the police officers and the local
authority preferred an information against him under s. 45 of the
Town Police Clauses Act 1847. The stipendiary magistrate
described the police officers as agents provocateurs and ruled
that their evidence against the driver fell to be excluded under s.
78 of the Police and CriminalEvidence Act 1984 in the
reasonable exercise of his discretion, having regard to decisions
of the European Court of Human Rights and the Human Rights
Act1998. He accordingly dismissed the information and the
local authority appealed.
Held -Neither the jurisprudence of the European Court of
Human Rights nor the forthcoming implementation of the 1998
The Police Journal, Volume 75 (2002) 247
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