TL, R. v [2018] EWCA Crim 1821

[2018] EWCA Crim 1821

Case No 201802044

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT AT NOTTINGHAM

His Honour Judge Sampson

T20177253

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2018

Before

THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE HONOURABLE MR JUSTICE WILLIAM DAVIES

THE HONOURABLE MR JUSTICE NICKLIN

Between

REGINAAppellant

TLRespondent

Mr P Jarvis (instructed by Crown Prosecution Service) for Appellant

Mr G.A.M. Purcell (instructed by Philips, Mansfield) for Respondent

Hearing Hearing dates: 13 June 2018

Judgment Approved

The Lord Burnett of Maldon CJ:

[1]This is a prosecutor's appeal against a decision to stay criminal proceedings in the Crown Court as an abuse of process.

[2]The respondent, Mr L, faced a single count indictment in the Crown Court at Nottingham alleging that he attempted to meet a child following sexual grooming contrary to section 1(1) of the Criminal Attempts Act 1981. The essence of the allegation is that between 29 April and 3 May 2017 he communicated online and by WhatsApp with a person he believed to be a girl who was 14 years old. He arranged for that girl to go to his flat to take part in a threesome with his girlfriend. The person with whom he was communicating was an adult male, Jamie-Ray Mr U, who ran a group called “Predator Hunters”. This is one of a large number of groups established across the country which seek to expose adults seeking to have sex with children. He and others attended the appointment at the respondent’s flat, having tipped off the police. The respondent was arrested and his electronic communications seized. The prosecution was mounted on the strength of the content of his electronic equipment. The respondent’s defence, as disclosed in the defence case statement, was that his girlfriend was responsible for the messages sent from his phone, not him. She gave evidence for the prosecution and denied that suggestion.

[3]Before the trial started, an application was made on behalf of the respondent to stay the proceedings as an abuse of process relying on entrapment and the principles set out in the decision of the House of Lords in R v Looseley

[2001] UKHL 53

;

[2001] 1 WLR 2060

. The judge rejected that application but indicated that it might be renewed at the end of the prosecution case in the light of the evidence given by Mr U. On 8 May 2018 the application was renewed successfully and the Judge stayed the prosecution as an abuse of process.

[4]The prosecutor seeks leave to appeal against the terminating ruling pursuant to section 58 of the Criminal Justice Act 2003, the jury having been discharged. The Registrar has referred the prosecution application for leave to appeal to the full court. The provisions of section 71 of that Act apply to these proceedings with the result that no publication may include a report of these appeal proceedings, save the specified basic facts, until the conclusion of the trial.

[5]We grant leave to appeal and, for reasons which we will explain, allow the appeal.

The facts in more detail

[6]On 29 April 2017 the respondent’s phone was used to join a chatroom called “Say Hi” which may be accessed via an app. It appears to be a vehicle through which sexual encounters may easily be arranged. The profile suggested “me and my female partner wanting a girl that’s willing to try a new experience” and indicated that the girl should be 18 to 29. A few days later Mr U joined the chat room and set up a profile for a female named “Bexie”. The registration suggested she was 18, because unless that statement is made during the application process it is rejected.

[7]Nonetheless, although the profile gave a date of birth in 1999, it went on to say:

“Hiya am just your average 14-year-old girl looking to meet new friends”

. The respondent, or whoever was using his phone, replied and asked in terms whether she was looking for sex and wanted a threesome with a 22-year old man and a 19-year-old female. Bexie’s response was:

“Hey am 14 so I’m very inexperienced”

. The reply was:

“It’s ok we are experienced we will learn u and u can join in on sex as threesome”

. The following day Bexie replied “but I’m a virgin …” There followed an exchange about where she and the phone user lived. Having established that they lived relatively close to each other, the respondent’s phone asked, “do you wanna meet up and sleep at ours for the night”. Bexie answered, “what to do though I’ve never done or met a boy before”.

[8]In the next exchange, which took place late at night, Bexie indicated that she was getting ready for bed because she had school the next day. She was asked when she was off school and she indicated a date. The next set of messages included the following:

“Do you wanna meet after school” “What to do?” “Go bk to ours” “Okay but what will we do?” “Have sex and show u how it feels” “But I don’t know how to have sex. Does your girlfriend know?” “Yh” “Oh ok is she ok with this?” “Yh completely” “We both want a threesome can u send me a pic of u” (a picture was sent by Bexie) “There you go” “U got any naked pics of u if you haven’t can u send me some if u don’t mind” “I don’t send them sorry but if I come to you then I’ll let you take some. Shall I come tomorrow after school?”

A conversation followed about location before Bexie continued. “Does my age not bother you” “No” “Have you done it before” “Have I done what before” “Done it with a girl my age before” “No” “Oh ok so why am I so special and is it ok if I come up after my tea xx” (a picture was sent by Bexie)

[9]The exchange continued with more detailed arrangements and with discussion of what excuse Bexie would give to her mother. She asked for an assurance that she would not be hurt. She was then asked:

“U ok to have sex with us” “I dunno how n never done it before though” “What” “I’ve never had sex before what if I am rubbish”

She was reassured that her photograph meant she was gorgeous and that it did not matter that it was her first time. A photograph of the respondent and his girlfriend was sent back. There were further exchanges in which she expressed concern about getting pregnant. She was told:

"U won't I promise u that … because I won't cum inside u … or do u want me to get sum condoms now"

That produced the response “are they them rubber things”. That was confirmed and in a gap in communication of 15 minutes the phone user went out and bought condoms and sent a photograph as proof. After further exchanges about the time of meeting and how long Bexie would stay, the arrangement was finalised. As we have indicated, Mr U, together with others from his group, and the police turned up at the respondent’s door.

The application and the ruling

[10]It was submitted by Mr Purcell on behalf of the respondent that he had been entrapped and that Mr U had set out to incite offences when otherwise no offence would have been committed. It was suggested that the police were encouraging the activity of vigilante groups, including Mr U's in particular, and that the use of the evidence provided by such groups suggested at least tacit support for their activities. It was argued that the image provided by Bexie was of someone older than 14. It was submitted that the group of which Mr U was part was malicious and engaged in uncontrolled and unregulated activity. The heart of the submission was encapsulated in paragraphs 18 and 19 of the written argument in support:

“18. It is submitted that the vigilante groups ought not to be encouraged by the police and the prosecution and ultimately the courts in the prosecution of these offences. 19. It is submitted that the process of the court is being abused by the failure to regulate the activities of these vigilante groups where they are inciting offences that otherwise would not have been committed.”

[11]There was an additional argument that the provisions of the Regulation of Investigatory Powers Act 2000 [“RIPA”] applied, because Mr U should be regarded as a covert intelligence source. The judge rejected that argument, not least because he concluded that there was no evidence that the group was acting as an agent of the police. It has not been renewed.

[12]Mr Jarvis, for the prosecution, submitted that leaving aside the RIPA question, there was no basis for suggesting that Mr U was acting as an agent for, or at the behest of, the police and that there was no support in authority for staying a prosecution of this sort as an abuse of process. In particular, Looseley was concerned with actions of the police or other state actors.

[13]The judge noted that Mr U was told by the police, sometime after the material events, that they did not condone the activities of this group. The judge added that the police were willing to use "evidence obtained by these self-appointed, unregulated, freelance evidence-gathering bodies." He continued:

"That said, the question before me concerns this case only. The question is, did Mr U entrap the accused, Mr L? If he did, or might have done, it is argued with some force that the indictment should be stayed. I am not concerned with the blameworthiness of Mr L, but with the propriety of there being a prosecution at all."

In his exposition of the facts and evidence, the judge explained that in his view the photograph provided was of a girl "from at least 14 but could be older, including 18 or more”. He considered that Mr U's evidence that he had picked the photograph as "an innocent looking 14-year-old" was disingenuous. He noted Mr U's evidence that going to the chatroom in question had been suggested to him as a suitable place to find paedophiles by others engaged in similar vigilante activities. The judge considered this to be intelligence in a vague sense. But he did not think that it provided reasonable suspicion that the site was in fact being used in that way.

[14]The judge identified Looseley as the leading case on entrapment and recognised that it was concerned with the action of the police and other law enforcement agencies. He quoted passages from the speeches of Lord Nicholls, Lord Hoffmann and Lord Hutton before concluding that:

“There is nothing to stop such a group gathering material and handing it to the police. It may form the basis of an intelligence led police operation, it may add to the body of evidence obtained by the police. However, in my judgment, if the purpose of the exercise is to behave like an internet police force, and to behave in a proactive way, in order to obtain evidence on which to mount a prosecution, it seems to me the common law principle against entrapment should apply to this private citizens’ operation, in the same manner as it would apply to a police operation.”

The judge added to that essential reasoning that the offence was artificially created by a vigilante group without reasonable cause. Had the police acted in this way it would have been an abuse of process. It was insufficient to say that, because this sort of activity goes on in chatrooms, it was legitimate to mount a "virtue testing exercise". It was a disproportionate invasion of privacy. His conclusion would have been different if there had been evidence sufficient to give reasonable suspicion that the site was being used by adults to groom children. He would have concluded:

“… first that Mr L had been presented with no more than an unexceptional opportunity to commit a crime; second that the artifice and stratagem, or proactive technique used by Mr U, was just within the bounds of acceptability; third that the offence, ostensibly committed by Mr L had not been induced by the actions of Mr U.”

Grounds of Appeal

[15]The appellant contends(a) that the judge erred in concluding that the principles articulated in Looseley could be read over without modification to the activities of non-state actors; and

(b) that, in any event, if the activities of Mr U had been undertaken by the police, there would have been no abuse of process.

Looseley

[16]Looseley was a case which concerned police conduct that provided the appellant with the opportunity to supply drugs to an undercover officer. The Attorney General's reference, heard at the same time, concerned the use of undercover officers to offer for sale contraband cigarettes. The headnote captures the essence of the ratio: "The court was required … to balance the need to uphold the rule of law by convicting and punishing those who committed crimes and the need to prevent law enforcement agencies from acting in a manner which constituted an affront to the public conscience or offended ordinary notions of fairness; that each case depended on its own facts and, when identifying the limit to the types of police conduct which were acceptable, the principle to be applied was that it would be unfair and an abuse of process if a person had been lured, incited, or pressurised into committing a crime which he would not otherwise have committed; but that it would not be objectionable if a law enforcement officer, behaving as an ordinary member of the public would, gave a person an unexceptional opportunity to commit a crime, and that person freely took advantage of the opportunity.”

[17]The context of the consideration by the House of Lords of the questions on appeal was identified by Lord Nicholls, in the first paragraph of his judgment, as the inherent power to prevent abuse of process to ensure that "executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state." Entrapment does not provide a defence to a criminal charge, but the court acts in appropriate circumstances to prevent the prosecutorial arm of the state from behaving in an improper way [16]. The judicial response to entrapment by state agents is based on the need to uphold the rule of law and to refuse to sanction the prosecution of "state-created crime" [19]. He continued by exploring what was meant by that concept before identifying what he described as a useful guide to where the boundary might lie:

"… to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasis the word ‘unexceptional’. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might be expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police do no more than others could be expected to do. The police did not create crime artificially." [23] Lord Nicholls continued by identifying a number of other factors that might fall to be considered before indicating: "

Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn's formulation of a prosecution which would affront the public conscience is substantially to the same effect: see R v Latif

[1996] 1 WLR 104

,112. So is Lord Bingham of Cornhill CJ's reference to conviction and punishment which would be deeply offensive to ordinary notions of fairness: see Nottingham City Council v Amin

[2000] 1 WLR 1071

, 1076. In applying these formulations the court has regard to all the circumstances of the case." [25]

[18]Lord Hoffmann and Lord Hutton delivered further comprehensive speeches, agreeing with each other and with Lord Nicholls. Lord Mackay of Clashfern and Lord Scott of Foscote agreed with all three.

[19]Lord Hoffmann summarised the position at [36]. Entrapment is not a defence but the court has jurisdiction to stay a prosecution on the ground "than the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself had caused to transgress." This abuse jurisdiction was fashioned to "prevent abuse of executive power" [40]. Having referred to Lord Steyn's formulation in the Latif case (“an affront to the public conscience”) he continued by analysing the concept in some detail. "The objections to entrapment are certainly more specific that a generalised fastidiousness about police practices. The theme that runs through all discussions of the subject is that the state should not instigate the commission of criminal offences in order to punish them. But what counts for this purpose as instigation? An examination of the authorities demonstrates, in my opinion, that one cannot isolate any single factor or devise any formula that will always produce the correct answer. One can certainly identify a cluster of relevant factors but in the end their relative weight and importance depends upon the particular facts of the case." [48]

[20]Between [50] and [55] Lord Hoffmann considered the distinction between "causing and providing an opportunity" to commit an offence and, in particular, whether the law enforcement officer behaved like an ordinary member of the public. He considered that concept works well in regulatory offences (selling unlicensed liquor, operating a private hire vehicle without a licence etc.) but less well in cases involving serious criminality, such as drug dealing or conspiracy to rob. He then discussed a feature of many entrapment cases, namely that a person is suspected of criminal activity with the opportunity then created to test that suspicion, under supervision. Supervision is part of the close regulation of such activity operated by police and other law enforcement agencies themselves. At [60] Lord Hoffmann referred to the then governing Code of Practice dealing with undercover officers, test purchasers and decoys. He explained that reasonable suspicion does not necessarily mean that there must be suspicion of a particular person:

"The police may, in the course of a bona fide investigation into suspected criminality, provide an opportunity for the commission of an offence which is taken by someone on whom no suspicion previously attached. This can happen when a decoy (human or inanimate) is use in the course of the detection of a crime which has been prevalent in a particular place. Lamer J in R v Mack 44 CCC (3d) 513,553 gave the example of the police planting a handbag in a bus terminal where numerous thefts had recently taken place. A real example in England was Williams v Director of Public Prosecutions (1993) 98 Cr App R 209, in which the police were investigating thefts from vehicles in Essex. They left an unattended Transit van with the back door open and cartons of cigarettes visible. When the appellants stole the cigarettes, they were arrested. Although the judgment contains, at p-213, some reference to causal reasoning ("they were tricked into doing what they wanted to do") I do not think that in such a case causation provides a sufficient answer. If the trick had been the individual enterprise of a policeman in an area where such crime was not suspected to be prevalent, it would have been an abuse of state power. It was justified because it was an authorised investigation into an actual crime and the fact that the defendants may not have previously been suspected or even thought of offending was their hard luck."

[21]The Code of Practice required the authorising officer to be satisfied that the desired result could not be achieved without the use of subterfuge envisaged. The nature of the offence, especially consensual offences such as dealing in unlawful goods, bribery, conspiracy and offences where victims would be reluctant to report an offence, might justify the use of such methods [66]. And at [70] Lord Hoffmann said:

"70. ...it seems to me that when Lord Bingham CJ in [the Nottingham case] said that the accused should not be "incited, instigated, persuaded, pressurised or wheedled" into committing the offence, he was not intending each of those verbs to be given a disjunctive and technical meaning. He was intending to evoke a more general concept of conduct which causes the defendant to commit the offence as opposed to giving him the opportunity to do so. No doubt a test purchaser who asks someone to sell him a drug is counselling and procuring, perhaps inciting, the commission of an offence. Furthermore, he has no statutory defence to a prosecution. But the fact that his actions are technically unlawful is not regarded in English law as a ground for treating them as an abuse of power: see R v Latif [1996] 1 WLR 104 and compare Ridgeway v The Queen 184 CLR 19. 71. In summary, therefore, the principles of English law on which a stay of proceedings may be granted on ground of entrapment involve the consideration of a number of aspects of the behaviour of the law enforcement authorities, some of which I have examined in detail, and deciding whether the involvement of the court in the conviction of a defendant who has been subjected to such behaviour would compromise the integrity of the judicial system."

[22]Lord Hutton, at [100], expressed his full agreement with the views expressed by Lord Nicholls and Lord Hoffmann in balancing "the competing requirements that those who commit crimes should be convicted and punished and that there should not be an abuse of process which would constitute an affront to the public conscience." He approbated the way in which McHugh J had set out the position in the Ridgeway case in the High Court of Australia at p92:

"I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence."

[23]Lord Hutton added that a prosecution should not be allowed to proceed when the evidence had been obtained by threats.

[24]All members of the Committee concluded that the approach in English law was entirely consonant with the requirements of

article 6 of the European Convention on Human Rights

and Strasbourg authority.

Other authority

[25]It is well established that there are two broad types of abuse of process which may lead to a prosecution being stayed. They were summarised by Lord Dyson in Warren v Attorney General for Jersey

[2012] 1 AC 31

at [21]. The first occurs when it is impossible to give the accused a fair trial. The second when it offends the court's sense of justice and propriety to be asked to try the accused or would undermine public confidence in the criminal justice system and bring it into disrepute.

[26]There is one authority, to which we will refer, where the actions of non-state actors have been considered for the purposes of deciding whether a prosecution should be stayed as an abuse of process on the second basis.

[27]Council for the Regulation of Health Care Professionals v The General Medical Council and Saluja

[2006] EWHC 2784 (Admin)

;

[2007] 1 WLR 3094

concerned an undercover journalist who posed as a patient. She persuaded a doctor to agree to give her a sickness certificate to enable her to take time off work and go on holiday. There was no question of her being ill. In disciplinary proceedings the Fitness to Practise Panel of the General Medical Council stayed the proceedings as an abuse of process relying on entrapment. The appeal to the High Court was allowed by Goldring J. He noted a number of decisions, in both the disciplinary and criminal context, in which a distinction has been drawn between state actors and non-state actors in abuse of process cases. R v Shannon

[2001] 1 WLR 51

concerned an appellant who sought to rely on abuse of process in circumstances where he said he was induced by an undercover journalist to buy drugs. This court drew a distinction between entrapment by state agents and non-state agents, [39]. The case went to Strasbourg, [2005] Crim LR 133, but the application was rejected as manifestly unfounded. The Strasbourg Court explained that its jurisprudence was concerned with entrapment by state actors (c.f. Teixeira de Castro v Portugal

(1998) 28 EHRR 101

). The state's role in Shannon's case was limited to prosecuting on the basis of information provided by a third party which the court considered was different. It did not exclude the possibility that admission of evidence obtained in this way may render the proceedings unfair for the purposes of

article 6 ECHR

, just as the domestic court might in some circumstances exclude the evidence or stay the proceedings. R v Hardwicke [2001] Crim LR 220 and R v Marriner

[2002] EWCA Crim 2855

were both cases of alleged journalistic entrapment. This court drew a distinction between such behaviour and that involving the state and its agents. Hasan v General Medical Council

[2003] UKPC 5

was a previous medical disciplinary case where a doctor argued entrapment by a journalist, without success.

[28]Goldring J concluded that to impose a stay in cases of alleged entrapment by a non-state actor was exceptional [79] and then continued:

"80. Second, the principle behind it is the court's repugnance in permitting its process to be used in the face of the executive's misuse of state power by its agents. To involve the court in convicting a defendant who has been the victim of such misuse of state power would compromise the integrity of the judicial system. 81. Third, as both domestic and European authority make plain, the position as far as misconduct by non-state agents in concerned, is wholly different. By definition no question arises in such a case of the state seeking to rely upon evidence which by its own misuse of power it has effectively created. The rationale of the doctrine of abuse of process is therefore absent. However, the authorities leave open the possibility of a successful application for a stay on the basis of entrapment by non-state agents. The reasoning I take to be this: given sufficiently gross misconduct by the non-state agent, it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the resulting evidence. In other words, so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity. There has been no reported case of the higher courts, domestic or European, in which such "commercial lawlessness" has founded a successful application for a stay. That is not surprising. The situations in which that might occur would be very rare indeed."

Discussion

[29]We have seen that the judge recognised that the Looseley case was concerned with the agents of the state but nonetheless posed for his determination the question whether "Mr U entrapped Mr L". He then sought to apply the common law principle against entrapment in the same way to the actions of a private citizen as it would be applied in those of a police officer. By using that shorthand, he did not appear to pose the overall question as applies to state agents’ conduct as variously articulated in the speeches in the Looseley case, for example, whether what occurred was “deeply offensive to ordinary notions of fairness”or was “an affront to the public conscience” or “was so seriously improper as to bring the administration of justice into disrepute” (see [17] above). It is implicit, however, that the judge took the view that it was.

[30]The judge considered that the absence of sufficient suspicion that the site was being used for illegal activity was a critical factor in deciding which side of the line Mr U’s conduct fell. He concluded that, had there been evidence sufficient to give reasonable suspicion that the site was being used by adults to groom children, he would have concluded that Mr L had been presented with no more than an unexceptional opportunity to commit a crime; and that the technique used by Mr U was just within the bounds of acceptability.

[31]Consideration of the speeches in the Looseley case demonstrates that the principles there explained apply to the conduct of agents of the state. Involvement of agents of the state in unacceptable behaviour is at the heart of the reasoning. It is the court’s unwillingness to approbate seriously wrongful conduct by the state, by entertaining a prosecution, that is the foundation of this aspect of the abuse jurisdiction. So much is clear from Looseley itself and was recognised in Shannon in both the domestic proceedings and in Strasbourg and also in Marriner. The judge’s approach allowed no distinction between the conduct of Mr U, as a private citizen, and agents of the state, when considering whether to stay the prosecution as an abuse of process. In our judgment he erred in that respect. For that reason, the judge’s conclusion cannot be supported.

[32]In both domestic jurisprudence (see the Health Care Professionals case) and in Strasbourg when looking at conduct for the purposes of article 6 (see the Shannon case) there is a recognition that the conduct of a private citizen may in theory found a stay of proceedings as an abuse of process. As Goldring J recognised in the former case, no question of the state seeking to rely upon evidence which flows from its own misuse of power arises. The underlying purpose of the doctrine of abuse of process is not present. Nonetheless, a prosecution needs evidence; and it is not inconceivable that given sufficiently gross misconduct by a private citizen, it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the product of that misconduct. The issue would be the same: would the prosecution be “deeply offensive to ordinary notions of fairness”or “an affront to the public conscience” or “so seriously improper as to bring the administration of justice into disrepute”. In other words, as Goldring J put it:

“so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity”

. He observed that there had been no reported case in which such activity has founded a successful application for a stay. Like him, we do not find that surprising. Given the absence of state impropriety, the situations in which that might occur would be rare.

[33]We have no hesitation in concluding that the circumstances of this case are not amongst them.

[34]We start by observing that Mr U committed no offences in the course of his conduct which led to Mr L’s arrest. True it is that he posted a profile which said the girl he was posing as was 18. But on the first inquiry he said she was 14. At no time did he induce the user of Mr L’s phone to commit an offence. He was providing information which represented that the girl in question was only 14 and also explained that she was sexually inexperienced. It was the user of the phone who made all the running. Indeed, Mr U appears to have been scrupulous to avoid encouraging his interlocutor in the proposed sexual activity and at no time did he take the lead. This is far removed from a case of incitement in the sense of one person pushing another towards committing an offence which he would otherwise not commit, for example by badgering someone to engage in unlawful sexual or other activity. On the contrary, this is more akin to the example given by Lord Hoffmann in the Looseley case (see [20] above) from Williams v DPP in which the police were investigating thefts from vehicles and left a van unlocked with cartons of cigarettes visible.

[35]A starting point in considering whether the conduct of a private citizen should result in a stay of proceedings is to ask whether the same, or similar, conduct by a police officer would do so. A precise comparison may be difficult because when the police or other state investigators or prosecutors act in this way, they do so subject to codes of conduct and strict hierarchical oversight.

[36]Nonetheless, in this case, whilst Mr U may not have had sufficient information to support a reasonable suspicion that the site was being used for grooming purposes, he was pointed in the direction of the site by others with an interest in suppressing illegal conduct. The police might well proceed on an intelligence led basis. That would involve more sophisticated evaluation of the intelligence, but to do so would not be objectionable. If they had then engaged in just the same way as did Mr U their conduct would not have supported a stay for abuse. On the contrary, this would have been an example of the type of investigation of potentially serious criminal activity where the absence of suspicion of an individual, but intelligence to suggest that a dating site was being used for criminal purposes, would provide a proper basis for targeting that site. Of course, great care would need to be taken to do no more than give an opportunity for others to commit offences, but that is what Mr U did.

[37]If police officers had engaged in broadly similar conduct an application to stay the proceedings as an abuse of process should have failed.

[38]Moreover, the judge’s conclusion that he would not have stayed these proceedings had Mr U had reasonable suspicion that the site was being improperly used for grooming purposes leads inevitably to the conclusion that they should not have been stayed. State misconduct is absent from the mix, but additionally Mr U’s choice of this site was not random (as we have described). Even had it been, that would not support a suggestion that his conduct was so egregious that the integrity of the court would be compromised by allowing the prosecution to proceed.

[39]There is nothing in Mr U’s conduct that makes it inappropriate for the prosecution to proceed. In reaching this conclusion we do not seek to undermine or contradict the stated position of the police, by which they discourage private individuals from setting out to identify those who groom children and arrange to meet them for sexual purposes. They have concerns that their own investigations might be compromised, that private investigations may not produce admissible evidence, that there may be risks to the safety of the investigators and the subjects of their investigations and that the zeal of some “vigilantes” may lead them to seriously improper conduct. It would be much better for those in Mr U’s position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate. But the question before us is whether the judge was right to stay the proceedings as an abuse of process. Our conclusion is that he was not.

Conclusion

[40]In the result, we are satisfied that the judge applied the wrong test to the question whether these proceedings should be stayed. There is nothing in the conduct of Mr U which supports the stay of the prosecution as an abuse of process. We grant leave to appeal, allow the appeal and order a new trial.