Sting in the tail

Simon McKay, solicitor advocate, of McKay Law Solicitors & Advocates of Leeds, looks at the rules governing ‘honey traps’ and the issues surrounding entrapment.

The ‘honey trap’ is the classic undercover sting that it appears hasn’t lost its efficacy since the days of Mata Hari, perhaps the most enigmatic and infamous double agent of all time, who was found guilty of spying in 1917 and executed by firing squad.
Indeed, it appears that one of the rare occasions when a honey trap didn’t work was the spectacularly flawed undercover operation against Colin Stagg who was arrested for the murder of Rachel Nickell on Wimbledon Common in 1992. The Metropolitan Police, advised by psychologist, Paul Britton, sought to extract a confession through the use of a female plain clothes police officer known as Lizzie James. Mr Stagg, who was sexually inexperienced, failed to provide the necessary revelations so in a final attempt to persuade him to do so, Ms James offered him sex if he confessed to the murder. He didn’t, but there was still an attempt to prosecute him for Ms Nickell’s murder.
Following legal argument, Mr Justice Ognall described the action by police as “not merely an excess of zeal, but a blatant attempt to incriminate a suspect by positive and deceptive conduct of the grossest kind” and dismissed the case against him. Since then Robert Napper has been convicted of her murder and last week, Ms Nickell’s partner lodged a formal complaint about the way the police handled the investigation.  

Entrapment
To be fair, the rules governing honey traps by the police or other public authorities are not as liberal as those conducted by foreign intelligence agencies or sections of our own press, who can pretty much do what they like without being concerned with the rules of evidence. If anything is surprising it is the gullibility of the targets.
In the Shannon case in 2001, the unsuspecting defendant, a star of the television series London’s Burning was the subject of a sting by the News of the World during the course of which he was offered money, drink, drugs and sex by a would-be Sheik if only he could get hold of some cocaine that night. “I couldn’t believe my luck,” said the unfortunate Shannon, who promptly found and supplied the fake Sheik with the drugs he was after. Subsequently, of course, the matter was sensationally reported in the newspaper, the police intervened and Shannon was arrested and subsequently convicted.
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 the investigators they would not otherwise 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.
Firstly 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, the way and manner in which it is carried out are relevant considerations. 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 p