Dear BP,
Entrapment has been the focus of discussion over the last week. However, this has been more of a political debate, not a substantive or critical evaluation of what is indeed meant by entrapment or the nature of the activity. Common sense usually takes flight in the presence of common sense, stupidity, and political opportunists, so I will attempt to fill the vacuum.
Entrapment in U.S. law is a legal defence that applies when law enforcement induces a person to commit a crime they would not have otherwise committed. It is based on the principle that government agents cannot originate a criminal design, implant the disposition to commit a crime in an innocent person, and then induce them to commit it.
There are two key elements to an entrapment defence:
- Government inducement of the crime.
- Lack of predisposition by the defendant to engage in the criminal conduct.
Courts use two tests to determine entrapment:
- Subjective test: Focuses on whether the defendant was predisposed to commit the crime before law enforcement’s involvement.
- Objective test: Examines whether law enforcement’s actions would have caused a normally law-abiding person to commit the crime.
In U.S. Supreme Court cases regarding police entrapment, the following is applicable.
· Mathews v. United States (1988): This case established that defendants can argue entrapment even if they deny committing the crime. The defendant, an employee of the Small Business Administration, was accused of accepting a bribe. The Court ruled that entrapment could be considered if sufficient evidence showed that the government induced the crime and the defendant lacked predisposition.
· Jacobson v. United States (1992): The Court ruled in favour of the defendant, finding that he was subjected to 26 months of repeated government inducement before committing the crime. The ruling emphasised that the government must prove that the defendant was predisposed to commit the crime before any official intervention.
· Sherman v. United States (1958): The Court found entrapment when a government informer repeatedly pressured the defendant into selling narcotics. The ruling reinforced that entrapment occurs when criminal conduct results from law enforcement’s “creative activity” rather than the defendant’s intent.
These cases set essential precedents for entrapment defences in criminal law.
In UK law, entrapment is not a standalone defence, but it can be used to argue that a case should not proceed due to abuse of process. Courts assess whether law enforcement or other authorities induced a person to commit a crime they would not have otherwise committed. Some key UK cases explored the nature of entrapment.
· R v Loosely (2001): This case set a precedent for entrapment claims in the UK. The House of Lords ruled that law enforcement officers should not instigate crimes but can offer an opportunity to commit them. The case involved an undercover officer purchasing heroin from a suspect, raising questions about whether the officer’s actions constituted entrapment.
· Court of Appeal in Syed (2018): In this case, the defendant argued that he had been lured into committing terrorist offences by undercover agents posing as extremists. The Court of Appeal examined whether the principles established in Loosely were compatible with human rights laws.
· Entrapment by undercover police officers (2001): This case involved officers presenting suspects with opportunities to commit crimes. The courts ruled it was not entrapment if officers merely provided an unexceptional opportunity. However, if they actively incited the crime, it could be considered an abuse of process.
These cases highlight the fine line between legitimate undercover operations and improper inducement. Unlike in the U.S., where entrapment is a formal defence, UK courts focus on whether law enforcement’s conduct was inappropriate. If so, the case may be dismissed. Undercover police operations in the UK often involve officers posing as criminals or associates to gather evidence. However, entrapment is not a formal defence in UK law—it is instead considered an abuse of process. But there are some police operations which almost always rely on entrapment and are borderline unlawful. Such as:
- Agent Provocateur: If an officer induces a crime rather than merely providing an opportunity, it may be considered entrapment.
- R v Loosely (2001): The House of Lords ruled that officers should not instigate crimes but can offer an opportunity to commit them.
- Undercover Operations Code of Practice: UK police authorities have guidelines to ensure undercover officers do not cross ethical boundaries.
If law enforcement lures someone into committing a crime they would not have otherwise committed, the court may stay proceedings, preventing prosecution. This comes naturally to official communications and how this matter was approached. It is safe to say that this is the predictable result when more energy is expended comparing corned beef and rice recipes than on crafting professional government communications.
Sincerely,
Michael J. Brown
