Avoiding allegations of entrapment

Deception of the grossest kind or vital tool in the investigation of serious crime? Simon McKay, of McKay Law Solicitors and Advocates, advises on ‘sting’ operations.

Conducting an undercover operation that may give rise to allegations of entrapment carries with it a number of risks that require very careful management. The case of Colin Stagg, the man accused of murdering Rachel Nickell on Wimbledon Common in 1992, is an excellent example of how not to do it. The case was in the news again recently, following the conviction of Robert Napper for Ms Nickell’s murder. In acquitting Stagg in 1994, the trial judge, Mr Justice Ognall described the police operation as “a deception of the grossest kind”. No officer would like such a damning statement to be on their résumé but it is important to remember that the evidential dividends of a well-run ‘sting’ operation often far outweigh the risks.

Any operation that amounts to entrapment is unacceptable and in some cases has been referred to as “frightening and sinister”. The case law has evolved over the last century, most significantly in the aftermath of the introduction of the Human Rights Act 1998. From this jurisprudence it is possible to discern a definition of entrapment. In short it is conduct that induces someone to commit an offence that – but for the role of investigators – they would not have committed.

The leading case is and remains Looseley in 2001. The House of Lords exhaustively examined all the authorities in this area and without being formulaic identified some key principles around which police and other investigators could plan and conduct undercover operations likely to give rise to allegations by the defence of entrapment.

(1) Looseley recognises that there are classes of cases where normal methods of detection and investigation would not yield an effective result. These cases include drug-related offences, organised crime and terrorism. The nature of the offence, and the way and manner in which it is carried out, are relevant considerations.

(2) It also recognises that there are cases where some degree of participation in criminality is permissible. Test purchasing is perhaps a classic example. In such cases the key to staying within the boundaries of the law will be to ensure investigators act in the same way as an ordinary purchaser. The more forceful or persistent the investigators are the more problematic it will be to demonstrate the operation has stayed within permissible limits; this is more so where there has been a failure to have due regard to the vulnerability of a particular suspect.

(3) Even in these types of cases where the investigatory techniques that give rise to allegations of entrapment are permissible, there are limits to what is acceptable conduct. An undercover policeman who repeatedly badgers a vulnerable drug addict for a supply of drugs for excessive and increasing amounts of money, who finally capitulates and supplies drugs and is then arrested and prosecuted, will have over-stepped the mark. In the absence of the undercover operation the addict may never have supplied drugs to anyone. The crime is artificial or created by the state.

(4) Evidence of pre-disposition does not make acceptable that which would otherwise be unacceptable and does not negate the misuse of state power. In other words, there needs to be more than evidence that an individual is pre-disposed to commit the kind of offence under investigation. An individual’s criminal record is unlikely to be a relevant consideration. Evidence that the suspect would have committed the offence with someone else regardless of the State’s involvement will be extremely important.

(5) A helpful and important (though not necessarily decisive) test is to consider whether the police or investigator presented the defendant with an “unexceptional opportunity” to commit the crime. The emphasis needs to be on the word unexceptional. It may be helpful to consider whether the conduct of the officer prior to the offen