Entrapment by undercover police officers

Criminal proceedings not abuse of process and where officers presenting unexceptional opportunity to commit offence - officers' evidence not to be excluded in such circumstances R v Looseley; Attorney-General's Reference No 3 of 2000: HL (Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Hoffmann, Lord Hutton and Lord Scott of Foscote): 25 October 2001In the first case, an undercover police officer contacted the defendant.

They agreed a price and the defendant supplied the officer with heroin on three occasions.

The defendant was charged with supplying to another a class A controlled drug contrary to section 4 of the Misuse of Drugs Act 1971.He pleaded guilty when the trial judge refused to stay the proceedings as an abuse of the process of the court or to exclude the officer's evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984.

The Court of Appeal upheld the conviction.

The defendant appealed.In the second case undercover police officers, having sold the acquitted person cut-price contraband cigarettes, asked him if he could provide them with heroin.

He said he could not get heroin at short notice and was 'not really into heroin', but he eventually obtained drugs from another source and sold it to the officers.

He was charged with supplying to another a class A controlled drug.

The judge stayed the proceedings on the ground that the officers had incited the commission of the offence.

When the stay was lifted the prosecution offered no evidence, resulting in an acquittal.

The Attorney-General referred to the Court of Appeal pursuant to section 36 of the Criminal Justice Act 1972 the question whether, in a case involving the commission of offences by an accused at the instigation of undercover police officers, the judicial discretion conferred by section 78 of the 1984 Act and the power to stay proceedings as an abuse of the process of the court had been modified by article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.

The Court of Appeal [2001] 2 Cr App R 472 answered the question in the negative and made a further reference to the House of Lords.Patrick O'Connor QC and Michael Cousens (instructed by the Castle Partnership, Guildford) for the defendant.

David Perry and Christopher Hehir (instructed by Crown Prosecution Service) for the Crown.

Ben Emmerson QC, Alastair Munt and Danny Friedman (instructed by Rickards & Cleaver, Alfreton) for the acquitted person.

David Perry and Duncan Penny (instructed by the Crown Prosecution Service) for the Crown.Held, dismissing the appeal in the first case and affirming the Court of Appeal's answer in the second case, that, in general, where the police did no more than present the defendant with an unexceptional opportunity to commit a crime and the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances, they were not to be regarded as inciting or instigating crime; that ultimately the overall consideration was always whether the conduct of the law enforcement agency was so seriously improper as to bring the administration of justice into disrepute; that there was no appreciable difference between the requirements of article 6 and English law as it had been developed in recent years; that, in the first case, the judge had been entitled to conclude that the officer had done no more than present himself as an ideal customer so far as a drugs dealer was concerned and so his conduct had not constituted incitement; but that in the second case the officers had instigated the offence because they had offered inducements which would not ordinarily be associated with the commission of such an offence.

(WLR)