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Private informant entrapment as a form of Abuse of Process
Private informant entrapment in sexual cases: TL – a confirmation of existing principles : Colin Wells 25 Bedford Row
A. Introduction
1. The Court of Appeal Criminal Division in TL[2018] EWCA Crim 1821 considered the issue of private informant entrapment in a sexual allegation context, judgment dated 31st July 2018: examining the judicial discretion to stay proceedings where an offence has been incited by another using deceptive techniques, as part of a private informant entrapment operation.
2. Entrapment potentially falls within the category 2 type of abuse of process case identified as undermining public confidence in the integrity of the judicial process. InWilson v The Queen[1]the New Zealand Supreme Court summarised the courts’ balancing approach to undercover operation cases, identifying them as category 2 by citing the extract from Professor Choo’s book[2] as cited by Lord Dyson in Warren:[3]
“The courts would appear to have left the matter at a general level, requiring a determination to be made in particular cases of whether the continuation of proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. Implicitly at least, this determination involves performing a ‘balancing’ test that takes into account such factors as the seriousness of any violation of the defendant’s (or even a third party’s) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged”
3. Historically private informant entrapment by members of the public and journalists has been distinguished by courts from executive state entrapment carried out by Police and state agencies such as local authorities. This important distinction between private and state entrapment is at the heart of the TL decision
B. Executive State entrapment
4. The leading modern day authority on executive state entrapment is the House of Lords decision inLooseley and Attorney General’s Reference No 3 of 2000.[4]
5. Lord Nicholls giving the first judgment, of the House of Lords, observed:
1) [...] 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 role of the courts is to stand between the state and its citizen and make sure this does not happen.
2) [...] 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 theboundary line... 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[5]
4) Thus, there are occasions when it is necessary for the police to resort to investigatory techniques ... 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.
6. In considering the criteria by which a trial judge is to distinguish the acceptable from the unacceptable, Lord Nicholls commented:
... [A] useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime...whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime...the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute...
and listed some of the relevant circumstances:
(a) the nature of the offence;
(b) the reason for the particular police operation, with reasonable grounds for suspicion, possibly centred on a particular place or individual;
(c) the nature and extent of police participation/inducement in the crime, with regard to the defendant’s circumstances, including his vulnerability
(d) the defendant’s criminal record and linked matters.
7. The House of Lords in Looseley concluded that it would be unfair and an abuse of process if a person had been incited or pressurised by an undercover police officer into committing a crime, which he would not otherwise have committed. It would not be objectionable if the officer, behaving as an ordinary member of the public would, gave a person an unexceptional opportunity to commit a crime and that person freely took advantage of the opportunity. Every case depends upon its own facts.
8. Throughout Looseleythe analysis concentrates upon the conduct of state enforcement agencies not private individuals.
9. Subsequent to Looseley, case law has developed highlighting the fact specific nature of the entrapment jurisprudence illustrating some of ways offenders willingly participated in crime, as opposed to having being enticed or lured into offending. Again the conduct of state officials is the centre of attention.
10. One such example of Defence complaints of state entrapment being rejected by the Court of Appeal is the decision in Mia Moore and Ben Peter Burrows.[6]In dismissing the appeal, the Court of Appeal observed that the assessment to be applied, on the basis of Looseley was a fact sensitive matter and an appellate court would not interfere with the first instance judge’s assessment of the facts unless there was a serious error. In considering whether to stay proceedings because of alleged entrapment, the key question was whether the conduct of the police brought the administration of justice into disrepute. Lord Justice Rix in Mooreidentified[7]five factors of particular importance in considering the question:
· Was there reasonable suspicion of criminal activity, amounting to a legitimate trigger for the undercover operation;
· Was the operation properly authorised and supervised, so that there are legitimate proper control mechanisms in place;
· Are the means of subterfuge employed to police particular types of offence, necessary and proportionate;
· Was there an “unexceptional opportunity” to offend and causation of offending. Did the undercover officer cause crime or merely provide an opportunity to commit crime?;
· Whether there is authentication of the evidence obtained.
11. In Moore, the Court of Appeal rejected the abuse of process grounds of appeal as the undercover officers had done no more than provide the appellant with an opportunity, which she seized immediately and resolutely, to volunteer herself as a participant to substantial offending.
C. Private Informant entrapment
12. A different and distinct type of entrapment – informant - was recognised by the Court of Appeal in Wilson[8]. Appeals against conviction based upon abuse of process arguments were dismissed , but the Court of Appeal recognised that there was a judicial discretion to stay proceedings where an offence was incited by an informer.
13. When considering informant participation, the question will often turn on how active the informant has been before the police or law enforcement agency become involved.
14. In Paulssen v The Queen,[9]the Court of Appeal held that where entrapment took place without the knowledge of law enforcement agencies, an argument alleging an abuse of process could not apply to that aspect of the case in which the private individual informer was acting on his own (non-state authorised nor supervised) initiative.
15. In Ian Jones[10]the informant, did no more than reply to a message written by the appellant on a public toilet door. The Court of Appeal rejected abuse of process arguments. The informant an adult female (journalist), whilst travelling on a public train, saw a message on a train door seeking under age girls for sex, offering payment and asking the girls to telephone or text a mobile telephone number. The informant pretending to be a child telephoned the number and received in reply sexually explicit messages and invitations to meet. The informant contacted the police who set up an undercover operation using a police officer pretending to be an under aged girl. The appellant was arrested when he arrived at an agreed meeting place. He was charged with attempting intentionally to cause or incite a person under 13 to engage in sexual activity contrary to s.8 Sexual Offences Act 2003. In upholding the conviction, the Court of Appeal observed that the police did not create the offence – it was complete when the message was written by the appellant on the toilet door. To obtain evidence of the appellant’s intention (as opposed to fantasy) to incite penetrative sex, it was necessary to mount the undercover operation. The undercover police officer was limited to giving the appellant an opportunity to attempt to commit a similar offence where no harm could come to a victim and providing the evidence necessary for conviction. Far from bringing the administration of justice into disrepute the undercover police officer’s behavior was necessary to apprehend the appellant before he incited an actual child. There was no abuse of process.
16. In relation to private entrapment by journalists, if the journalist is acting on information received, conversations are recorded and no pressure was brought to bear on the person targeted, proceedings are unlikely to be stayed. Concerns about private entrapment can be dealt with under the exclusion of evidence provisions of section 78 of PACE, applying the Smurthwaiteguidelines – who took the initiative is relevant to the exercise of the court’s discretion.
D. TL decision
17. In TLLord Chief Justice Burnett gave the lead judgment in allowing a section 58 CJA prosecutor's appeal against a terminatory ruling to stay criminal proceedings (alleging attempting to meet a child following sexual grooming) in the Crown Court as an abuse of process based on entrapment.
18. The Prosecution allegation is that TL communicated online with a person he believed to be a girl who was 14 years old. He arranged for that girl to go to his flat to take part in a threesome with his girlfriend. The person with whom he was communicating was an adult male, Mr U, who ran a group called “Predator Hunters” which seek to expose adults seeking to have sex with children. He and others attended the appointment at the accused’s flat, having tipped off the police. The accussed was arrested and his electronic communications seized. The prosecution was mounted on the strength of the content of the electronic equipment. The defence, was that his girlfriend was responsible for the messages sent from his phone, not him. She gave evidence for the prosecution and denied that suggestion.
19. The first instance Judge stayed proceedings as an abuse of process based on entrapment and the principles set out in Looseley. The accused argued that Mr U had set out to incite offences when otherwise no offence would have been committed. It was suggested that the police were encouraging the activity of unregulated vigilante groups, including Mr U's in particular. In staying proceedings the first instance judge concluded:
“There is nothing to stop such a group gathering material and handing it to the police. It may form the basis of an intelligence led police operation, it may add to the body of evidence obtained by the police. However, in my judgment, if the purpose of the exercise is to behave like an internet police force, and to behave in a proactive way, in order to obtain evidence on which to mount a prosecution, it seems to me the common law principle against entrapment should apply to this private citizens’ operation, in the same manner as it would apply to a police operation.”
20. The judge added to that essential reasoning that the offence was artificially created by a vigilante group without reasonable cause. Had the police acted in this way it would have been an abuse of process. It was insufficient to say that, because this sort of activity goes on in chatrooms, it was legitimate to mount a "virtue testing exercise". It was a disproportionate invasion of privacy. His conclusion would have been different if there had been evidence sufficient to give reasonable suspicion that the site was being used by adults to groom children. He would have concluded:
“... first that Mr L had been presented with no more than an unexceptional opportunity to commit a crime; second that the artifice and stratagem, or proactive technique used by Mr U, was just within the bounds of acceptability; third that the offence, ostensibly committed by Mr L had not been induced by the actions of Mr U.”
21. In discussion the Court of Appeal considered one authority, where the actions of non-state actors have been considered for the purposes of deciding whether a prosecution should be stayed as an abuse of process on the category 2 basis:
Council for the Regulation of Health Care Professionals v The General Medical Council and Saluja [2006] EWHC 2784 (Admin); [2007] 1 WLR 3094 concerned an undercover journalist who posed as a patient. She persuaded a doctor to agree to give her a sickness certificate to enable her to take time off work and go on holiday. There was no question of her being ill. In disciplinary proceedings the Fitness to Practise Panel of the General Medical Council stayed the proceedings as an abuse of process relying on entrapment. The appeal to the High Court was allowed by Goldring J. He noted a number of decisions, in both the disciplinary and criminal context, in which a distinction has been drawn between state actors and non-state actors in abuse of process cases. R v Shannon [2001] 1 WLR 51 concerned an appellant who sought to rely on abuse of process in circumstances where he said he was induced by an undercover journalist to buy drugs. The Court of Appeal drew a distinction between entrapment by state agents and non-state agents, [39]. The case went to Strasbourg, [2005] Crim LR 133, but the application was rejected as manifestly unfounded. The Strasbourg Court explained that its jurisprudence was concerned with entrapment by state actors (c.f. Teixeira de Castro v Portugal (1998) 28 EHRR 101). The state's role in Shannon's case was limited to prosecuting on the basis of information provided by a third party which the court considered was different. It did not exclude the possibility that admission of evidence obtained in this way may render the proceedings unfair for the purposes of article 6 ECHR, just as the domestic court might in some circumstances exclude the evidence or stay the proceedings. R v Hardwicke [2001] Crim LR 220 and R v Marriner [2002] EWCA Crim 2855 were both cases of alleged journalistic entrapment. The Court of Appeal drew a distinction between such behaviour and that involving the state and its agents. Hasan v General Medical Council [2003] UKPC 5 was a previous medical disciplinary case where a doctor argued entrapment by a journalist, without success.
Goldring J in Saluja concluded that to impose a stay in cases of alleged entrapment by a non-state actor was exceptional [79] and then continued:
"[80]. Second, the principle behind it is the court's repugnace in permitting its process to be used in the face of the executive's misuse of state power by its agents. To involve the court in convicting a defendant who has been the victim of such misuse of state power would compromise the integrity of the judicial system.
[81]. Third, as both domestic and European authority make plain, the position as far as misconduct by non-state agents in concerned, is wholly different. By definition no question arises in such a case of the state seeking to rely upon evidence which by its own misuse of power it has effectively created. The rationale of the doctrine of abuse of process is therefore absent. However, the authorities leave open the possibility of a successful application for a stay on the basis of entrapment by non-state agents. The reasoning I take to be this: given sufficiently gross misconduct by the non-state agent, it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the resulting evidence. In other words, so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity. There has been no reported case of the higher courts, domestic or European, in which such "commercial lawlessness" has founded a successful application for a stay. That is not surprising. The situations in which that might occur would be very rare indeed."
22. The Court of Appeal in TL at paragraphs 29-39 allowed the Prosecutors appeal giving the following reasoning:
“[29]. We have seen that the judge recognised that the Looseley case was concerned with the agents of the state but nonetheless posed for his determination the question whether "Mr U entrapped Mr L". He then sought to apply the common law principle against entrapment in the same way to the actions of a private citizen as it would be applied in those of a police officer. By using that shorthand, he did not appear to pose the overall question as applies to state agents’ conduct as variously articulated in the speeches in the Looseley case, for example, whether what occurred was “deeply offensive to ordinary notions of fairness” or was “an affront to the public conscience” or “was so seriously improper as to bring the administration of justice into disrepute”. It is implicit, however, that the judge took the view that it was.
…[31]. Consideration of the speeches in the Looseley case demonstrates that the principles there explained apply to the conduct of agents of the state. Involvement of agents of the state in unacceptable behaviour is at the heart of the reasoning..... The judge’s approach allowed no distinction between the conduct of Mr U, as a private citizen, and agents of the state, when considering whether to stay the prosecution as an abuse of process. In our judgment he erred in that respect. For that reason, the judge’s conclusion cannot be supported.
[32] In both domestic jurisprudence (see the Health Care Professionals case) and in Strasbourg when looking at conduct for the purposes of article 6 (see the Shannon case) there is a recognition that the conduct of a private citizen may in theory found a stay of proceedings as an abuse of process. As Goldring J recognised in the former case, no question of the state seeking to rely upon evidence which flows from its own misuse of power arises. The underlying purpose of the doctrine of abuse of process is not present. Nonetheless, a prosecution needs evidence; and it is not inconceivable that given sufficiently gross misconduct by a private citizen, it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the product of that misconduct. The issue would be the same: would the prosecution be “deeply offensive to ordinary notions of fairness” or “an affront to the public conscience” or “so seriously improper as to bring the administration of justice into disrepute”. In other words, as Goldring J put it: “so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity”. He observed that there had been no reported case in which such activity has founded a successful application for a stay. Like him, we do not find that surprising. Given the absence of state impropriety, the situations in which that might occur would be rare.
[33] We have no hesitation in concluding that the circumstances of this case are not amongst them.
[34] We start by observing that Mr U committed no offences in the course of his conduct which led to Mr L’s arrest…... He was providing information which represented that the girl in question was only 14 and also explained that she was sexually inexperienced. It was the user of the phone who made all the running. Indeed, Mr U appears to have been scrupulous to avoid encouraging his interlocutor in the proposed sexual activity and at no time did he take the lead. This is far removed from a case of incitement in the sense of one person pushing another towards committing an offence which he would otherwise not commit, for example by badgering someone to engage in unlawful sexual or other activity….
[35] A starting point in considering whether the conduct of a private citizen should result in a stay of proceedings is to ask whether the same, or similar, conduct by a police officer would do so. A precise comparison may be difficult because when the police or other state investigators or prosecutors act in this way, they do so subject to codes of conduct and strict hierarchical oversight.
[36] Nonetheless, in this case, whilst Mr U may not have had sufficient information to support a reasonable suspicion that the site was being used for grooming purposes, he was pointed in the direction of the site by others with an interest in suppressing illegal conduct. The police might well proceed on an intelligence led basis. That would involve more sophisticated evaluation of the intelligence, but to do so would not be objectionable. If they had then engaged in just the same way as did Mr U their conduct would not have supported a stay for abuse. On the contrary, this would have been an example of the type of investigation of potentially serious criminal activity where the absence of suspicion of an individual, but intelligence to suggest that a dating site was being used for criminal purposes, would provide a proper basis for targeting that site. Of course, great care would need to be taken to do no more than give an opportunity for others to commit offences, but that is what Mr U did.
[37] If police officers had engaged in broadly similar conduct an application to stay the proceedings as an abuse of process should have failed.
[38] Moreover, the judge’s conclusion that he would not have stayed these proceedings had Mr U had reasonable suspicion that the site was being improperly used for grooming purposes leads inevitably to the conclusion that they should not have been stayed. State misconduct is absent from the mix, but additionally Mr U’s choice of this site was not random (as we have described). Even had it been, that would not support a suggestion that his conduct was so egregious that the integrity of the court would be compromised by allowing the prosecution to proceed.
[39] There is nothing in Mr U’s conduct that makes it inappropriate for the prosecution to proceed. In reaching this conclusion we do not seek to undermine or contradict the stated position of the police, by which they discourage private individuals from setting out to identify those who groom children and arrange to meet them for sexual purposes. They have concerns that their own investigations might be compromised, that private investigations may not produce admissible evidence, that there may be risks to the safety of the investigators and the subjects of their investigations and that the zeal of some “vigilantes” may lead them to seriously improper conduct. It would be much better for those in Mr U’s position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate. But the question before us is whether the judge was right to stay the proceedings as an abuse of process. Our conclusion is that he was not.”
E. Summary
23. The decision inTL provides a useful reminder of
(a) the Looseley principles are to be applied when considering whether criminal proceedings should be stayed as an abuse of process based upon state entrapment at first instance and considered by the appellate court under a section 58 terminatory ruling appeal;
(b) cases should not be stayed, nor evidence excluded, for entrapment in ‘test purchase’ situations in which
(i) the state enforcement officers have reasonable grounds to suspect the targeted person of involvement in a particular kind of offence, or at least reasonable grounds to suspect people visiting a particular place, to be involved
(ii) where the illegal activity is ongoing, the officers do no more than provide the suspect with an unexceptional opportunity to commit the offence, replicate ordinary customers’ behaviour and impose no special trick, extra pressure nor added inducement;
(e) although there is no single factor to determine the issue of entrapment, the overriding question is whether:
“the officers did more than...to afford the accused the opportunity to offend, of which he freely took advantage in circumstances where it appears that he would have behaved in a similar way if offered the opportunity by someone else or whether, on the other hand, by means of unworthy or shameful conduct, they may have persuaded him to commit an offence of a kind which otherwise he would not have committed” ;[11]
(f) in considering whether the conduct of a private citizen should result in a stay of proceedings a starting point is to ask whether the same, or similar, conduct by a police officer would do so. If the individual is acting on information received, evidence is gathered and no pressure was brought to bear on the person targeted, proceedings are unlikely to be stayed. Evidential concerns about private informant entrapment can be dealt with under section78 PACE.
Colin Wells 25 Bedford Row London