Criminal

Defendant supplying drugs to journalist - journalist agent provocateur - no defence of entrapment or requirement that prosecution evidence be excludedR v Shannon: CA (Potter LJ, Hidden J and Judge Ann Goddard QC): 14 September 2000

The defendant, who was charged with supplying drugs to a journalist posing as an Arab sheikh in an elaborate scheme to obtain evidence of drug offences against him, applied at a voire dire hearing to exclude all the prosecution evidence on the ground that it was agent provocateur evidence unfairly obtained, contrary to s.78 of the Police and Criminal Evidence Act 1984, which deprived the defendant of a fair trial guaranteed by art.6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953).

The judge ruled that the evidence was admissible and the defendant was subsequently convicted of supplying small quantities of cocaine and cannabis resin.

David Etherington QC and Jennifer Dempster (instructed by Hedley-Saunders & Co, Crawley) for the defendant.

Martin Hicks (instructed by the Crown Prosecution Service) for the Crown.

Held, dismissing the appeal, that the present state of English authority remained, that the exercise of the judge's discretion was concerned with, and constrained by, the effect of the entrapment on the fairness of the proceedings in the procedural sense, bearing in mind that entrapment, as such, was not a defence in English law; that Teixeira di Castro v Portugal (1999) 28 EHRR 101 did not propound a fundamental fairness objection of general application that, in cases of incitement or instigation by an agent provocateur, the court should not entertain a prosecution at all, regardless of the question of whether the trial as a whole could be a fair one in the procedural sense; and that, in accordance with this, the judge's decision was correct.