Dear Auntie,
I am wondering if you can help clear up something relating to entrapment, we seem to be getting conflicting views as to what is and is not permissible in the course of an investigation.
I was always under the impression that if you planted something in the expectation that someone would take it, this was entrapment as you had enticed them to commit the crime (e.g. putting something in a void council house which you expect a housing officer to take.)
However, we have just had a case which we have been working on with the police where they told us to plant a purse and a camera in a building to see if they get stolen by a suspect following a spate of thefts (which they duly were). Why wouldn’t that be seen as entrapment?
Can we use the evidence we got from planting the evidence in a prosecution?
Your confusedly,
Trapped
ITS Training (UK) Ltd.
…a rather good training company!
Dear Trapped,
A very good question dearie and something that I think is worth clearing up for all as there is much confusion out there about this.
The thing most people call entrapment is a concept that we know about from US law, mainly due to the film and tv industry. In the UK, the main considerations are the application of s78 of PACE, which allows for the exclusion of unfairly obtained evidence, and the HRA. The PACE section requires the court to have regard to (amongst other things) the circumstances in which the evidence was obtained ; the HRA requires us to consider the proportionality of any intrusive act.
There are three considerations. Firstly you must not act as an accessory. In English law you must not ‘aid, abet, counsel or procure’ the commission of an offence, that that you must not help someone in the act of committing it, facilitate its commission, advise them in ways of committing it or persuade them to commit it.
If you do any of these things, you may be tried and (if convicted) punished as if you had committed the original offence. Regardless of whether or not you are prosecuted, any evidence obtained is likely to be tainted.
Secondly (and assuming that you have not assisted as above!) the technique of providing an opportunity to commit a crime is intrusive, to a greater or lesser degree. It should never be used without good reason and is not to be used for wholesale ‘virtue-testing’. The greater the degree of intrusiveness, the closer will the court scrutinise your reasons for using it.
Thirdly, your conduct must not be so seriously improper as to bring the administration of justice into disrepute. You must act in good faith, doing no more than is reasonable in the circumstances.
In most cases you should do no more than provide a ‘controlled’ opportunity that is, in all objective terms, not significantly different from that which might occur in the normal course of events. You should do no more than a normal ‘victim’ might do.
The best case on this is Regina v Loosely, AG’s Ref 3/2000 [2001] UKHL 53. If my memory serves me I believe it’s available on the parliament website.
Leaving marked goods where a person you suspect can see them and, therefore, has a free choice over whether to act honestly or not in regard to those goods is not prohibited by English law.
They have the choice over what to do : they could leave them, take them and hand them in to the police, take them and return to the owner or take them and either keep or dispose of the contents. They choose, you do not.
In the case you describe, a workman might well leave ‘portable property’ in a void house ; so too might a tenant : leaving in a hurry and abandoning a small cd collection, for example. All you are doing, in placing an item in the property, is creating a controlled version of an opportunity that might otherwise be difficult to police.
Hope this helps dearie and let me know how you get on with any more of those ‘sting’ operations.
Auntie