Submitted By: Chloe Hanna
Question: 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 v Underhill (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 vChinoy 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.