Police entrapment occurs when a law enforcement officer, such as a police officer, causes a person to commit an offence with the intention of prosecution for that offence.
What constitutes entrapment?
Entrapment arises where a law enforcement officer induces a person to commit an offence that otherwise they would have had no intention of committing.
If, for example, an undercover agent poses as a, they would only be guilty of entrapment if they deliberately solicit or coerce the business of a passer-by (kerb crawler).
If the street prostitute makes no obvious attempt to solicit, and the unwitting customer makes it clear his intentions are to publicly solicit the business of the prostitute, a court is entitled to find that the behaviour observed was not manipulated by the undercover agent; the offender was merely acting how they would have done with or without the police presence.
The courts have held that it is generally acceptable for the police to carry out test purchases (DPP v Marshall (1988)) or pretend to be passengers to catch unlicensed taxi drivers (Nottingham City Council v Amin (1999)).
Police entrapment and court proceedings
The issue of evidence gained from police entrapment activity in court cases is a hazy area in terms of how relevant it is in conviction. Sometimes, where criminal activity has been ‘encouraged’ or facilitated by a law enforcement officer, evidence derived may not ‘stand up in court’ when it is considered that the integrity of the legal system is in jeopardy due to such actions.
Where police entrapment is found, criminal proceedings in court can be ‘stayed’ (stopped).
In the leading case of R v Loosely (2001), the House of Lords laid out guidelines as to what courts should consider when deciding whether proceedings against a defendant should be stayed:
- Did the police act in good faith?
- Did the police have good reason to suspect the accused of criminal activities?
- Did the police suspect that crime was very prevalent in the area in which the investigation took place?
- Were the investigatory techniques used necessary due to the secrecy and difficulty of detection of the criminal activity in question?
- What was the nature of the offence and the defendant’s circumstances and vulnerability?
Police and Criminal Evidence Act 1984
In relation to evidence gained from entrapment, courts hold the discretion under s 78 of the Police and Criminal Evidence Act 1984 to exclude evidence from a trial on the grounds that if it were included, it would have an unfair, adverse effect on the proceedings.
However, in R v Loosely, the court held that the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt, but whether they should have been brought at all. The ability to stay a case is testament to this.
Entrapment as a defence
It has been established by the courts that there is no defence of entrapment in English law (R v Sang (1980)). This is because the act of entrapment does not take away the intent to commit a guilty act from the accused. In this sense the entrapment has served its purpose, in that a prohibited act was observed, the guilty party arrested and the guilty intent supposedly not manipulated, just the circumstances surrounding the guilty act.
It can be used as mitigation in sentencing, however, and, if the police or other government agents lure someone into committing a crime and then try to prosecute them for doing so, this would be considered an abuse of court process and the judge could order a stay of the proceedings.
In R v Looseley; Attorney General’s Reference (No 3 of 2000)  1 Cr App R 29, the House of Lords held that although entrapment is not a substantive defence in English law, where an accused can show entrapment, the court may stay the proceedings as an abuse of the court’s process or it may exclude evidence pursuant to Section 78 Police and Criminal Evidence Act 1984 [‘PACE 1984’].
Of these two remedies, the grant of stay (rather than the exclusion of evidence at the trial) should normally be regarded as the appropriate response, since a prosecution founded on entrapment would be an abuse of the court’s process.
Police conduct which brings about state-created crime is unacceptable and improper, and to prosecute in such circumstances would be an affront to the public conscience. However, if the accused already had the intent to commit a crime of the same or a similar kind, and the police did no more than give him the opportunity to fulfil his existing intent, that is unobjectionable.
The factors to be considered where entrapment is alleged were set out in R v Moore  EWCA Crim 85, as follows:
- reasonable suspicion of criminal activity as a legitimate trigger for the police operation (a control mechanism for testing the police’s good faith)
- authorisation and supervision of the operation as a legitimate control mechanism (to ensure proper control of the operation)
- necessity and proportionality of the means employed to police particular types of offence
- the concepts of ‘unexceptional opportunity’ and causation
- authentication of the evidence (i.e., of the conversations and contacts)