The law is unclear as to how much protection is afforded to those entrapped by undercover journalists into committing criminal offences, says David Sleight
‘It is a very, very clear case of entrapment solely to create a newspaper story.’ So said His Honour Judge Mitchell at the sentencing hearing of Edward Terry (pictured), the father of England footballer John Terry, at Basildon Crown Court earlier this month. The case was brought by the CPS following a News of the World ‘sting’ where Terry was secretly filmed facilitating the supply of a small amount of cocaine to an undercover reporter.
Despite the judge’s comments, the question of whether or not the law affords sufficient protection to those who are entrapped by undercover journalists into committing criminal offences is far from clear.
It is established case law that, while offering significant mitigation at sentence, there is no defence of entrapment in English law (R v Sang  AC 402). However, it is also considered to be an abuse of court process for agents of the state to lure citizens into committing illegal acts and then seek to prosecute them for doing so. State-created entrapment of this sort will result in a stay of proceedings.
The leading case on entrapment is R v Loosely  UKHL 53. The case was concerned with the actions of undercover police officers carrying out test purchase operations. Lord Nicholls identified that a useful guide when considering whether the conduct of the police amounted to inciting or instigating crime was to ascertain whether the police did more than present the defendant with an unexceptional opportunity to commit a crime. If the police conduct preceding the commission of the offence was no more than might have been expected by others in the circumstances this would not constitute entrapment. If, however, it went beyond this an abuse of process by the state may well be established.
For defendants who commit crimes following entrapment by private parties, the abuse argument is much more difficult to sustain. In R v Shannon (aka Alford) which followed the infamous ‘fake-sheikh’ sting by the News of the World, the former London’s Burning actor was filmed supplying drugs to the undercover reporter. Shannon appealed against his conviction on the basis that the evidence was obtained unfairly under section 78 of the Police and Criminal Evidence Act 1984. In the Court of Appeal, Potter LJ stated that it is insufficient that the unfairness complained of relates to the fact that the defendant would not have committed the crime but for the incitement of others, unless the behaviour of the police or the prosecuting authority has been such as to justify an abuse of process.
Therefore, the key issue in an application for a stay of proceedings on the grounds of abuse of process or exclusion of evidence under section 78 in entrapment cases is the conduct of the police or the prosecuting authority. The problem for defendants in private entrapment cases is that, unless there is some kind of criticism to be levelled specifically at the police or the Crown Prosecution Service relating to how the evidence was obtained, then any argument regarding exclusion of evidence or an abuse of process is likely to fail. After all, the Crown would argue that they are simply presenting the evidence as obtained by a third party in line with their duty to prosecute criminal offences. In most cases of private entrapment, the Crown would only become involved after the offence, and indeed after the entrapment, has taken place.
It appears perverse that, while the law protects against the state causing citizens to commit illegal acts, it does not protect against private parties doing the same thing, where often the participation of the private ‘entrapper’ goes beyond that which would be deemed appropriate by law enforcement officers. Many newspapers stings involve an expensive and targeted campaign on one individual, based on limited or no intelligence, where the inducement is persistent and the primary incentive is to sell newspapers, not to prevent crime.
In R v Latif  1 WLR 104, Lord Steyn stated that the court should exercise its jurisdiction to stay proceedings on the grounds of entrapment, where the judge considers that the bringing of the prosecution ‘amounts to an affront to the public conscience’. In certain circumstances the techniques adopted by undercover reporters to entrap citizens into committing criminal offences must pass this threshold. In any society governed by the rule of law, it is surely undesirable for the press to have an unfettered power to utilise undercover techniques to solicit the commission of criminal offences.
That private entrapment does offend the public conscience, at least to some degree, is evidenced in the comments given by the jury when delivering their verdict of guilty in Hardwicke and Thwaites  Crim L.R. 220: ‘The jury would like to say that the circumstances surrounding the case have made it very difficult for us to reach a decision. Had we been allowed to take the extreme provocation into account we would have undoubtedly reached a different verdict.’
It is clear that the jury in this case felt constrained by the law as it stands and believed that the entrapment in this case, which again involved the supply of drugs to an undercover News of the World reporter, affected the propriety of the conviction.
In light of the above there must be an onus on the CPS in private entrapment cases to carefully consider the circumstances surrounding the commission of the offence, and if appropriate, to exercise their discretion not to prosecute on the basis that it would not be in the public interest. In Loosely, Lord Nicholls submitted a number of factors which are of particular relevance when considering whether the conduct of the prosecution would be an affront to the public conscience. It is submitted that those factors (below), adapted from Lord Nicholl’s speech and applied to individuals entrapped by undercover reporters, may offer some guidance in consideration of whether it is in the public interest to prosecute someone who commits an offence in those circumstances:Unfortunately, once the CPS has decided that a prosecution should ensue, the remedies appear remote, even for clear cases of entrapment. The case law focuses on state-created entrapment but its application to private entrapment cases has not been thoroughly tested. At present, the law regarding private entrapment appears to remain as Lord Fraser described it in Sang, ‘when Eve, taxed with having eaten the forbidden fruit, replied "the serpent beguiled me", her excuse was, at most, a plea in mitigation and not a complete defence’.
- Whether or not the undercover reporter did more than present an unexceptional opportunity to commit a crime;
- The reason for the particular sting operation. Is the reporter/newspaper acting in good faith and not, for example, as part of malicious vendetta against a particular suspect?;
- The nature and extent of the reporter’s participation. The greater the inducement and the more forceful or persistent his overtures, the more likely that the conduct might have brought about commission of crime by a suspect who would normally avoid crime of that kind;
- The suspect’s criminal record. This will only be relevant if it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity.
David Sleight, a solicitor at Kingsley Napley, represented Edward Terry in his recent criminal case