Submitted by: Chloe Hanna
The boundary between acceptable undercover policing and impermissible entrapment is arbitrary and unclear. Critically discuss the statement and the extent to which you agree.
Recently there has been significant increase in the use of covert surveillance and proactive investigation by police, with undercover officers’ primary objective being to gather evidence and intelligence to use at trial (College of Policing website). The exclusion of improperly obtained evidence is a complex ethical issue that requires a delicate balancing act between the rights of the accused and the public interest in preventing crime. Without effective oversight, the line between acceptable undercover policing and entrapment, an act of improper conduct which brings about state-created crime to secure a conviction (CPS Abuse of Process Guidelines 2018), can easily become blurred. In order to regulate the admissibility of evidence obtained by covert policing there has been a plethora of case law supported by the Police and Criminal Evidence (NI) Order 1989 (‘PACE’).
Development of the Legal Framework
The traditional common law approach to admissibility of evidence was that ‘it matters not how you get it, if you steal it even, it would be admissible’ (R v Leatham 1861). Judges were not concerned with how evidence was obtained and did not have the discretion to refuse to admit evidence solely on the basis that it was obtained by unfair or improper means (R v Sang 1979). This approach was considered ‘narrow and confusing’ (Keane and McKeown 2018), since it did not give due regard to the qualitive difference between the mere failure to observe procedure and the major misuse of state power. The introduction of PACE and the seminal House of Lords case R v Looseley (2001), marked a departure from the traditional stance on entrapment, and are now regarded as the leading authorities. However, the extent to which the current law has enlarged the common law discretion remains an unsettled debate (Dennis 2017).
For Ho 2019, the drafting of legislation itself lacks clarity. Although one may read it as a broadening of the common law approach, through the inclusion of wrongful procurement as a ground for exclusion (R v Chalkley 1998), the reference to ‘fairness of proceedings’ does not make it obvious what must have occured pre-trial to be capable of affecting the fairness of the trial itself (Mirfield 1997). The distinction drawn in Nottingham City Council v Amin (2000) between police providing an opportunity to commit crime and the actual causing of a crime, is highly problematic (Squires 2006).
Despite it being inherently clear that the courts object to unfairness through state-created crime, it is not obvious what is meant by ‘causing’ a crime. In an attempt to elaborate, the courts have conceptualised a subjective approach, considering whether the police’s conduct was so serious that it, in effect, lured the accused into committing a crime that they would not have otherwise committed (R v Moore and Another 2013). However, this in itself is futile. The fact that officers are undercover suggests that defendant would have acted the same way had the officer been anyone else, hence no case should amount to entrapment. The courts are therefore forced to rely heavily on case facts to determine whether any exceptional persuasion or force was involved that meets the threshold of entrapment (Furcht v Germany 2015).
By their nature, many undercover operations come close to the common-sense view of entrapment (Siegel 2015); but as reiterated by Roskill LJ in the Court of Appeal decision of R vUnderhill (1979), the distinction between proper and improper police behaviour is ‘a line which unhappily in practice is sometimes not very easy to draw.’ There is a large grey area in the law when it comes to the determination of whether the acts of undercover policing amount to entrapment (Brooke 1999). As the cases are very fact specific, the line of case law has become progressively more blurred. The use of judicial discretion, as Bronitt (2002) notes, claims to highly regard values of fairness, rule of law and human rights, but in its application fails to do so because of the ‘facts’ before them. The possibility of distinguishing cases on facts, outshines the ability to adopt a strict application of any legal rule or principle.
Clear and Consistent Principles?
The courts in their application of the law have ‘wedded themselves…to the reliability principle’ (Ormerod and Birch 2004), the conception that if improper action does nothing to cast doubt on reliability or strength of the evidence, it should remain admissible (R v Cooke 1995). The reliability principle does provide a coherent thread in the cases, but usually in favour of admissibility, not exclusion (Chalkley; R v Khan 1997); thus, it has proven to be a pragmatic stance, but not particularly principled. The danger of ‘innocent’ citizens becoming corrupted raises important issues of principle, and despite PACE providing the opportunity for the courts to give regard to the ‘moral integrity of the process’ (Ormerod and Birch), they have failed to place emphasis on the integrity, disciplinary (R v Mason 1988) or protection principles.
The development of the doctrine of entrapment at the European Court of Human Rights level, particularly through the judgments of Allan v UK (2002) and Texheira v Portugal (1998), has become increasingly more principled. At the same time, the UK courts have provided little explanation as to why, in their view, entrapment should give rise to judicial intervention (Squires); leading to what can be deemed as arbitrary decisions. Without clear underlying principles, the wide judicial discretion exposes the ability for judges to make capricious judgments. Often, this leads to anomalous results in case law. For example, the issue of a stay of proceedings in R v Grant (2006) was later held in R v Warren (2012) to be wrong, because it was based on the judges’ disproval of police misconduct which was regarded as ‘an impermissible use of the power to stay proceedings.’
In the abundance of case law judges have made general assertions that entrapment is a ‘misuse of state power’, an ‘affront to public conscience’ (Looseley) and ‘malpractice by law enforcement agencies’ (R v Latif 1996); however, no guidance has been provided to suggest these may form the basis of a decision. Instead, the courts are content to continue the strict reliance on the reliability principle (Choo 2013), despite the fact it will result in a restrictive application of the law and a narrow conception of fairness (Ho). By evading the setting out of precise principles, the court is allowing an inconsistent application of the law; further making it more difficult to draw a line between appropriate and inappropriate undercover policing.
In seeking to further solidify the law on admissibility of evidence obtained by entrapment, scholars have put forth many suggestions; including formulating greater regulation through legislation (Bronitt), creating a defence of entrapment (Ashworth 1999), and imposing an automatic stay of proceedings where entrapment occurs (Choo 1993). However, these would not be appropriate as they fail to address the main issue (Laudan 2008), that there is no clear or consistent approach for deciding what amounts to entrapment and what is simply a legitimate investigatory tool (R v Chinoy 1990; Lustgarten 1987).
The calls for simply a more principled approach (Roberts and Zuckerman 2010) are the most compelling of the suggested reforms. To continue use of judicial discretion, there is a need for clearer guidelines and more consistent precedent, otherwise the system becomes a ‘shambles of incomprehensible decisions…founded on little more than simply good sense’ (Day’s Law Blog 2013). The courts must highlight specifically why certain acts are impermissible under the law; be it the need for police discipline because of the contradiction of those who are charged to maintain the law arranging for it to be broken (Robertson 1993), or the reduced culpability because of police involvement (Choo 1993).
Although the introduction of PACE and the subsequent case law appears to provide a clearer approach to entrapment than the traditional common law method; the surrounding literature strongly suggests, upon which this essay agrees, that in reality the law is still unclear and arbitrary. The ambiguous nature of the legislation has resulted in the adoption of a wide discretionary approach by the courts, in attempt to apply unclear principles in an already onerous area of the law. Cases have become so fact specific, that without a comprehensive authority outlining the underlying principles upon which decisions should be made, the distinction between acceptable and impermissible covert policing will continue to be inconsistent and almost unidentifiable.
Amy is charged with robbery, and Brenda and Caroline are charged with handling stolen goods. It is alleged that on the 10th November 2019 Amy entered a jewelry shop on the Lisburn Road and threatened the staff before making off with a number of expensive necklaces. The shop manager alerted the police, telling them that she had ran in the direction of Malone Road. PC Davis found her an hour later, with one gold necklace on her possession. He then charged her under Articles 3 and 5 of the Criminal Evidence (Northern Ireland) Order 1988, at which point Amy claimed that the necklace had been a birthday gift from a friend.
Three days later, the police receive a tip off that Brenda and Caroline, two individuals long known to the police for petty theft, have been given responsibility of pawning off the stolen jewelry. The police decide to set up a fake pawn shop in the area, and a week later, Brenda comes in with a bracelet. She initially claims it was a gift that she does not want, but after the undercover police officer mentions that the shop is very interested in acquiring jewelry and would not be interested in where it came from, Brenda offered to bring in “some pieces from the Lisburn job”. She was then arrested and cautioned for handling stolen goods.
Knowing that Brenda has a record as a hardened criminal and fearing that she will cover her tracks well DC McVeigh and DC Howlin decide to plant an informer in the cell with her along with covert recording equipment. The informer asks Brenda what she is in for. Brenda is initially reluctant to talk, but the informer pursues the conversation. During the course of the conversation the informer asks Brenda if she is worried the police will find the rest of the jewelry. Brenda replies “no way, it’s all stashed at Caroline’s house.”
Caroline was arrested at her home the next morning and a large box of jewelry was found in her kitchen cupboard. On arrest, she was cautioned under Article 3 and 5 of the Criminal Evidence (Northern Ireland) Order 1988. Caroline remained silent at the police station, following advice from her solicitor.
All three defendants will plead not guilty. Amy will not testify at trial. Brenda will not testify and will challenge the admission of her statements in the pawn shop and in her cell. Caroline will testify saying Brenda asked her to keep the box of jewelry in her house but did not tell her the jewelry was stolen.
Consider the evidential issues arising.
The right to fair trial is a key feature of the UK criminal justice system, enshrined in the European Convention of Human Rights, Article 6. To ensure fair trial, the court is permitted to exclude evidence where it would adversely affect the fairness of a trial. In addition, the Criminal Evidence (NI) Order 1988 (‘the Order’) permits the jury to draw inferences against an accused for failing or refusing to:
- Mention a fact later relied upon in their defence (Article 3);
- Testify (Article 4);
- Account for marks, objects or substances found on their person (Article 5);
- Account for their presence at a place about the time an offence was committed (Article 6).
The issues that arise in Amy, Brenda and Caroline’s case are whether the jury at trial may draw inferences under the Order’s provisions, and whether the confessions made by Brenda were improperly obtained.
Amy is charged with robbery. She was arrested one hour after the incident, with a gold necklace in her possession. PC Davis, at the time of her arrest, cautioned her under Articles 3 and 5 of the Order. It appears no inferences may be drawn under these articles since she accounted for possession of the gold necklace; whether her assertion is truthful is not an issue under evidential rules; and she does not rely on anything at trial she has not previously mentioned. Further, the failure to caution Amy under Article 6 prevents any adverse inference against her presence nearby the incident (Article 6(3)). The evidential issue that surfaces is her subsequent failure to testify at trial.
The jury are entitled to draw adverse inferences against Amy’s failure to testify, providing that the judge is satisfied as a matter of law that it is proper and the conditions under the Order Article 4 are met. Under Article 4(1)(a), Amy’s guilt must be in issue through the establishment of a prima facie case to answer (R v Murray 1994); the burden of that proof lies with the prosecution (Woolmington v DPP 1935). Further evidence of Amy’s guilt must be adduced, as she cannot be put on trial solely on the basis of an inference (Article 2(4); Murray v UK 1996). Although inferences may not be drawn from her presence, other evidence such as eye-witness accounts would be sufficient.
The second consideration is whether it would be undesirable for the accused to give evidence, such as physical or mental condition (Article 4(1)(b)). On consideration of the available facts (R v Tabbakh (Hussan) 2009), Amy appears to be in a fit state to answer questions put to her (R v Harkin and Gordon 1995). Finally, Amy must be aware that inferences may be drawn from her failure to testify. Unlike the other articles, this caution should be given by the judge (Article 4(2)). Once the judge is satisfied the conditions are met, he must direct the jury using the five principles set out by the Court of Appeal in R v Cowan (1995); failure to give an adequate direction may lead to a quashed conviction on appeal (R v Birchall 1999). The jury may then draw any inference using their ‘ordinary common sense’ (Hau Tua Tau v PP 1982; Murray 1994).
Brenda is charged with handling stolen goods. Following a ‘tip-off’ Brenda was arrested for attempting to pawn what is believed to be stolen jewellery, it is known that she was cautioned, but not under what specific articles. Proceeding with the assumption that she was correctly cautioned under the relevant articles, the evidential issues that arise are the potential that her confessions were improperly obtained and her decision to not testify. Her failure to testify is subject to the same requirements laid out above in respect to Amy and Article 4, hence does not require further elaboration.
Brenda’s admission that she had ‘pieces from the Lisburn job’ and later that they were ‘stashed at Caroline’s house’ are informal, incriminating statements that amount to a confession under Article 70(1), Police and Criminal Evidence (NI) Order 1989 (‘PACE’). Her confessions are prima facie admissible (PACE Article 74(1)), however Brenda is challenging this through the representation that they were improperly obtained.
With regards to the false pawn shop, Brenda may argue this amounted to entrapment. Under the leading authority of R v Looseley (2001), if she can satisfy the legal burden of proof the court may stay the proceedings or exclude the evidence (PACE Article 76(1)). Brenda’s case is reminiscent of R v Palmer (2014) and R v Christou(1992), in which the police used a false pawn shops to catch the sale of stolen goods. Similar to the present case, the shop in Palmer was ‘unethical’ and it was made clear to defendants that stolen goods would be accepted. Generally, it is not considered objectionable for police to provide accused with the opportunity to offend, if the accused voluntarily takes advantage of this opportunity (Nottingham City Council v Amin 2000) because they retain the mens rea (Allen 1984). Since the shop was open to the public and Brenda entered freely without any force or persuasion, and with consideration of her previous record and the tip-off (Furcht v Germany 2015), it is very unlikely to amount to entrapment.
The covert confession recordings in Brenda’s cell, although a breach of Article 8 ECHR, do not automatically lead to an exclusion of evidence (R v Khan 1996; R v Button 2005). Again, the judge has the statutory discretion to exclude the recording because of the adverse effect on the fairness of proceedings (PACE Article 76(1)). Good guidance for the relevant factors for consideration are set out in R v Smurthwaite (1994), however, for a concise conclusion to be drawn more details would be required on the specific facts of Brenda’s case. For example, what exactly was said and done by the informer to pursue the conversation. If held to be the equivalent of an interrogation, the evidence will be inadmissible due to breach of Article 6 ECHR (Allan v UK 2003) and failure to give caution under PACE Code C (R v Bryce 1992).
Caroline is also charged with handling stolen goods. She was arrested at home, following discovery of stolen jewellery in her kitchen, and cautioned under Articles 3 and 5 of the Order. Brenda’s confession in her cell alerted police to the whereabouts of the jewellery and implicates Caroline; if her confession is admissible, it may be used at trial as the building block of the prosecution’s case against Caroline (R v Hayter 2005). Since the jewellery box is relevant in itself (DPP v Kilbourne 1973), then it will remain admissible even if Brenda’s confession is inadmissible (PACE Article 74(4), (5) and (6)).
Caroline has remained silent on her possession of the jewellery pre-trial, enabling adverse inferences to be drawn under Article 5. At trial, she testifies to the fact that Brenda had asked her to keep the box, but she did not know that the items were stolen; a fact she previously failed to mention, but now relies upon in her defence (R v Chenia 2004). For an Article 3 inference to be drawn, the judge must be satisfied that the six conditions under R v Argent (1997) are met and that Caroline had opportunity to consult with a solicitor (Murray v UK 1996; Criminal Evidence (NI) Order 1999, Article 36). These are all clearly satisfied by the factual matrix. It is then for the judge to direct the jury (Cowan), identifying the facts not previously mentioned (Beckles v UK 2002).
Ultimately, whether Caroline could have reasonably been expected to mention the fact in the circumstances at the time of questioning, is a matter for the jury to decide (Argent). To argue that it was unreasonable, Caroline submits that she remained silent because of advice given by her solicitor. That bare assertion will not necessarily avoid the application of Article 3 to her case (R v Condron 1997). The jury’s consideration is not whether her reliance on solicitor’s advice was correct, but the reasonableness of that conduct (R v Hoare 2004; Beckles). There is nothing exceptional in the circumstances that suggest it was objectively unreasonable; her silence does not become reasonable simply because of the involvement of solicitor advice (R v Connelly and McCartney 1992; R v Howell 2003).
Even if her reliance was genuine, the jury can draw an adverse inference against Caroline if they are satisfied her silence could only be attributed to her having no answer, or none that would stand up to cross-examination (Condron v UK 2000). The jury may decide what inference is proper (Betts and Hall 2001); they may draw the inference that the fact was fabricated to form a defence for trial, or was in her mind at the interview, but she knew it would not stand up to examination (R v Pektar 2004).
In conclusion, there are several evidential issues that arise in this case. Amy and Brenda should be wary of the adverse inferences that a jury may draw against them due to their decision to not testify at trial. Further, it is to be expected that Brenda’s confessions will be admissible at trial; however, there is a wide judicial discretion and great focus is placed on case facts, it is therefore difficult to conclusively determine whether a court would find them admissible without having view of all the facts. Finally, with regards to Caroline, the discovery of the jewellery is admissible, and it is likely further inferences will be drawn by the jury as to her failure to rely on a fact she uses in her defence at trial.