Regina v Loosely [2001] UKHL 53

House of Lords
[2001] UKHL 53
Between
ReginaAppellantLooselyRespondent
Before
Lord Nicholls of BirkenheadLord Mackay of ClashfernLord HoffmannLord HuttonLord Scott of FoscoteDate 25 October 2001
[1]Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts 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, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen.[2]These propositions, I apprehend, are not controversial. The difficulty lies in identifying conduct which is caught by such imprecise words as lure or incite or entice or instigate. If police officers acted only as detectives and passive observers, there would be little problem in identifying the boundary between permissible and impermissible police conduct. But that would not be a satisfactory place for the boundary line. Detection and prosecution of consensual crimes committed in private would be extremely difficult. Trafficking in drugs is one instance. With such crimes there is usually no victim to report the matter to the police. And sometimes victims or witnesses are unwilling to give evidence.[3]Moreover, and importantly, in some instances a degree of active involvement by the police in the commission of a crime is generally regarded as acceptable. Test purchases fall easily into this category. In Director of Public Prosecutions v Marshall [1988] 3 All ER 683 a trader was approached in his shop in the same way as any ordinary customer might have done. In breach of his licence he sold individual cans of lager to plain-clothes police officers. In Nottingham City Council v Amin [2000] 1 WLR 1071 a taxi was being driven in an area not covered by its licence. The driver accepted plain-clothes police officers as fare paying passengers. Police conduct of this nature does not attract reprobation even though, in the latter case, the roof light on the taxi was not illuminated. The police behaved in the same way as any member of the public wanting a taxi in the normal course might have done. Indeed, conduct of this nature by officials is sometimes expressly authorised by Act of Parliament. The statute creating an offence may authorise officials to make test purchases, as in section 27 of the Trade Descriptions Act 1968.[4]Thus, there are occasions when it is necessary for the police to resort to investigatory techniques in which the police themselves are the reporters and the witnesses of the commission of a crime. Sometimes the particular technique adopted is acceptable. Sometimes it is not. For even when the use of these investigatory techniques is justified, there are limits to what is acceptable. Take a case where an undercover policeman repeatedly badgers a vulnerable drug addict for a supply of drugs in return for excessive and ever increasing amounts of money. Eventually the addict yields to the importunity and pressure, and supplies drugs. He is then prosecuted for doing so. Plainly, this result would be objectionable. The crime committed by the addict could readily be characterised as artificial or state-created crime. In the absence of the police operation, the addict might well never have supplied drugs to anyone.[5]I shall return later to the knotty problem of defining, or identifying, the limits of acceptable 'pro-active' conduct by the police. First I must consider where English law now stands on the overall question of entrapment. The remedy for entrapment[6]Common law countries differ in the nature of the remedy provided in entrapment cases. In the United States entrapment is a substantive defence in the federal courts. This is based on a presumption of legislative intent. 'Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations': see Sherman v United States (1957) 356 US 369, 372. The issue therefore is one for decision by the jury. The Canadian Supreme Court has adopted a different approach. In Canada the remedy is by way of stay of proceedings: see R v Mack (1988) 44 CCC (3d) 513. In Australia a third approach has found favour. In Ridgeway v The Queen (1995) 184 CLR 19 the High Court declined to follow the Canadian route. A stay is regarded as inappropriate once it is accepted that entrapment is not a substantive defence. But a trial judge has a discretion to exclude evidence of an offence where its commission was brought about by unlawful or improper conduct on the part of law enforcement officers. Likewise, in New Zealand the court has an inherent jurisdiction to exclude evidence so as to prevent an abuse of process by the avoidance of unfairness: see Police v Lavalle [1979] 1 NZLR 45[7]The judicial response to entrapment in this country before R v Sang [1980] AC 402 can be summarised as follows. Entrapment attracted expressions of judicial disapproval, notably by Lord Goddard CJ in Brannan v Peek [1948] 1 KB 68, 72, and Lord Parker CJ in R v Birtles [1969] 1 WLR 1047, 1049, but it did not furnish a substantive defence: see R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App R 59. Although not constituting a defence, in some cases judges excluded evidence in entrapment cases: R v Foulder [1973] Crim LR 45, R v Burnett [1973] Crim LR 748 and R v Ameer [1977] Crim LR 104. Entrapment was regarded as a mitigating factor in, for instance, R v McCann (1971) 56 Cr App R 359 .[8]In R v Sang [1980] AC 402 your Lordships' House affirmed the Court of Appeal decisions of R v McEvilly (1973) 60 Cr App R 150 and R v Mealey (1974) 60 Cr App R 59. The House treated it as axiomatic that entrapment does not exist as a substantive defence in English law. Lord Diplock, at p 432, noted that many crimes are committed by one person at the instigation of others. The fact that the counsellor or procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender:
'both the physical element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in his case'
. Likewise, Lord Fraser of Tullybelton observed, at p 446, that all the elements, factual and mental, of guilt are present and no finding other than guilty would be logically possible. The degree of guilt may be modified by the inducement and that can appropriately be reflected in the sentence. Lord Fraser famously added that when Eve, taxed with having eaten forbidden fruit, replied 'the serpent beguiled me', her excuse was at most a plea in mitigation and not a complete defence.[9]In Sang the House also decided that, leaving aside admissions and confessions, the court is not concerned with how evidence was obtained. It is no ground for the exercise of a trial judge's discretion to exclude evidence that the evidence was obtained as the result of the activities of an agent provocateur, or by other unfair or improper means. That would be to let in the defence of entrapment by the back door. R v Foulder [1973] Crim LR 45, R v Burnett [1973] Crim LR 748 and R v Ameer [1977] Crim LR 104 were wrongly decided. Entrapment is a mitigating factor and no more. Lord Scarman, at [1980] AC 402, 451, stated that the true relevance of official entrapment into the commission of crime is upon the question of sentence, when its mitigating value may be high.[10]The decision in Sang has not escaped criticism. For present purposes it is sufficient to note that the reasoning of their Lordships was directed at the question whether entrapment constitutes a substantive defence or is a cause for excluding evidence at the trial. But, as already noted, entrapment raises another and anterior issue, an issue of an altogether different dimension, quite distinct from the question of the defendant's guilt or the actual conduct of the trial. Entrapment assumes the defendant did the proscribed act, with the necessary intent, and without duress. But when entrapment occurs, the commission of the offence by the defendant has been brought about by the state's own agents. This is the crucially important difference between cases of entrapment and other cases of instigated crime. In Sang their Lordships were not called upon to consider whether a judge has power to stay criminal proceedings when law enforcement officers have acted in this way. Implicitly, however, they rejected the availability of this judicial remedy in entrapment cases. Lord Scarman said so expressly. He observed that a court is in duty bound to protect itself against abuse of its process, which 'is not this case': see p 455.[11]In this field English criminal law has undergone substantial development over the comparatively short period of twenty years since Sang was decided. The first development has been statutory. The decision in Sang on the admissibility of evidence obtained unfairly has been reversed by Parliament, by section 78 of the Police and Criminal Evidence Act 1984. Under section 78 the court now has power to exclude evidence on which the prosecution proposes to rely if, having regard to all the circumstances, the court considers the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The circumstances to which the court is to have regard include, expressly, the circumstances in which the evidence was obtained.[12]The phrase 'fairness of the proceedings' in section 78 is directed primarily at matters going to fairness in the actual conduct of the trial; for instance, the reliability of the evidence and the defendant's ability to test its reliability. But, rightly, the courts have been unwilling to limit the scope of this wide and comprehensive expression strictly to procedural fairness. In R v Smurthwaite [1994] 1 All ER 898, 902, Lord Taylor of Gosforth CJ stated that section 78 has not altered the substantive rule that entrapment does not of itself provide a defence. The fact that the evidence was obtained by entrapment does not of itself require the judge to exclude it. But, in deciding whether to admit the evidence of an undercover police officer, the judge may take into account matters such as whether the officer was enticing the defendant to commit an offence he would not otherwise have committed, the nature of any entrapment, and how active or passive was the officer's role in obtaining the evidence. I do not understand Auld LJ to have been expressing a contrary view in R v Chalkley [1998] 2 Cr App R 79, 105-107. Chalkley was not an entrapment case. Most recently in R v Shannon [2001] 1 WLR 51, 68, para 39, Potter LJ, as I read his judgment, accepted that evidence may properly be excluded when the behaviour of the police or prosecuting authority has been such as to justify a stay on grounds of abuse of process.[13]Next, the common law also has developed since the decision in Sang . In R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 your Lordships' House held that the court has jurisdiction to stay proceedings and order the release of the accused when the court becomes aware there has been a serious abuse of power by the executive. The court can refuse to allow the police or prosecuting authorities to take advantage of such an abuse of power by regarding it as an abuse of the court's process. Lord Griffiths, at p 62, echoed the words of Lord Devlin that the courts 'cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of law is not abused': see Connelly v Director of Public Prosecutions [1964] AC 1254, 1354. The judiciary should accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that 'threatens either basic human rights or the rule of law'.[14]In Bennett the defendant claimed he had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. It was not an entrapment case. But in R v Latif [1996] 1 WLR 104 the House confirmed that the same principle is applicable in entrapment cases: see Lord Steyn, at pp 112-113.[15]These statutory and common law developments have been reinforced by the Human Rights Act 1998 . It is unlawful for the court, as a public authority, to act in a way which is incompatible with a Convention right. Entrapment, and the use of evidence obtained by entrapment ('as a result of police incitement'), may deprive a defendant of the right to a fair trial embodied in article 6: see the decision of the European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EHRR 101.[16]Thus, although entrapment is not a substantive defence, English law has now developed remedies in respect of entrapment: the court may stay the relevant criminal proceedings, and the court may exclude evidence pursuant to section 78. In these respects Sang has been overtaken. Of these two remedies the grant of a stay, rather than the exclusion of evidence at the trial, should normally be regarded as the appropriate response in a case of entrapment. Exclusion of evidence from the trial will often have the same result in practice as an order staying the proceedings. Without, for instance, the evidence of the undercover police officers the prosecution will often be unable to proceed. But this is not necessarily so. There may be real evidence, or evidence of other witnesses. Exclusion of all the prosecution evidence would, of course, dispose of any anomaly in this regard. But a direction to this effect would really be a stay of the proceedings under another name. Quite apart from these practical considerations, as a matter of principle a stay of the proceedings, or of the relevant charges, is the more appropriate form of remedy. A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way.[17]I should add that when ordering a stay, and refusing to let a prosecution continue, the court is not seeking to exercise disciplinary powers over the police, although staying a prosecution may have this effect. As emphasised earlier, the objection to criminal proceedings founded on entrapment lies much deeper. For the same reason, entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstance in which it was committed.[18]A further point of principle should be noted. As observed by Auld LJ in R v Chalkley [1998] 2 Cr App R 79, 105, a decision on whether to stay criminal proceedings as an abuse of process is distinct from a determination of the forensic fairness of admitting evidence. Different tests are applicable to these two decisions. Accordingly, when considering an application by a defendant to exclude evidence under section 78, courts should distinguish clearly between an application to exclude evidence on the ground that the defendant should not be tried at all and an application to exclude evidence on the ground of procedural fairness. Sometimes a defendant may base his application under section 78 on both grounds. Then the court will need to reach a separate decision on each ground. Entrapment and the limits of acceptable police conduct[19]As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catch-phrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif [1996] 1 WLR 104, 112. In a very broad sense of the word, such a prosecution would not be fair.[20]But what is meant by 'state-created crime'? What is the legal concept underlying oft-repeated expressions such as lure, incite, or instigate? What is the distinction, of relevance in the commission of a crime, which these phrases are seeking to draw? If an undercover policeman asks a known drug supplier for drugs, is he 'luring' the unsuspecting supplier into committing a crime? If not, why not? What does 'lure' mean in this context? By what criteria is a trial judge to distinguish the acceptable from the unacceptable?[21]Questions such as these have generated extensive overseas judicial utterances and also academic literature, both in this country and abroad. The several suggested answers have different emphases and, to a limited extent, different practical consequences. Underlying some of the learning is the notion that expressions such as state-created crime and lure and incite focus attention on the role played by the police in the formation of the defendant's intent to commit the crime in question. If the defendant already had the intent to commit a crime of the same or a similar kind, then the police did no more than give him the opportunity to fulfil his existing intent. This is unobjectionable. If the defendant was already presently disposed to commit such a crime, should opportunity arise, that is not entrapment. That is not state-created crime. The matter stands differently if the defendant lacked such a predisposition, and the police were responsible for implanting the necessary intent.[22]Reasoning such as this, especially in the United States, is a prominent feature of the juridical analysis of why some police conduct is acceptable and other conduct is not. But, even leaving aside the difficulty that predisposition is an inherently speculative inference of fact, this analysis is inadequate as a tool. In particular, taken to its logical conclusion this analysis means that whenever the defendant's predisposition to commit the crime is established there cannot be a defence of entrapment. In the United States the law seems to have been taken this distance : see Hampton v United States (1976) 425 US 484, 489 - 490 per Rehnquist CJ. But surely it is going too far to say that a person who is ready and willing to commit a certain kind of crime can never be entrapped into committing it. As Lamer J observed in R v Mack (1988) 44 CCC (3d) 513, 551, it is always possible that, notwithstanding a person's predisposition, in the particular case it was the conduct of the police which led the defendant into committing the crime. In other words, the existence or absence of predisposition in the individual is not the criterion by which the acceptability of police conduct is to be decided. Predisposition does not make acceptable what would otherwise be unacceptable conduct on the part of the police or other law enforcement agencies. Predisposition does not negative misuse of state power.[23]Accordingly, one has to look elsewhere for assistance in identifying the limits to the types of police conduct which, in any set of circumstances, are acceptable. On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise 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 have been 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 did no more than others could be expected to do. The police did not create crime artificially. McHugh J had this approach in mind in Ridgeway v The Queen (1995) 184 CLR 19, 92, when he said:
'The State can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable. But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means.'
[24]This is by no means the only factor to be taken into account when assessing the propriety of police conduct. The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play.[25]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. The following comments may be made on some circumstances which are of particular relevance.[26]The nature of the offence. The use of pro-active techniques is more needed and, hence, more appropriate, in some circumstances than others. The secrecy and difficulty of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations.[27]The reason for the particular police operation. It goes without saying that the police must act in good faith and not, for example, as part of a malicious vendetta against an individual or group of individuals. Having reasonable grounds for suspicion is one way good faith may be established, but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place, such as a particular public house. Sometimes random testing may be the only practicable way of policing a particular trading activity.[28]The nature and extent of police participation in the crime. The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather, this is a recognition that what may be a significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade, whether lawful or unlawful, being carried on by the defendant will not normally be regarded as objectionable.[29]The defendant's criminal record. The defendant's criminal record is unlikely to be relevant unless it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity. As Frankfurter J said, past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing repeated convictions, from which the ordinary citizen is protected: see Sherman v United States (1957) 356 US 369, 383. The Human Rights Convention[30]The question raised by Attorney General's Reference No. 3 of 2000 is whether, in a case involving the commission of an offence by an accused at the instigation of undercover police officers, the judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984 or the court's power to stay proceedings as an abuse of the court has been modified by article 6 of the European Convention of Human Rights and the jurisprudence of the European Court of Human Rights. I would answer that question in the negative. I do not discern any appreciable difference between the requirements of article 6, or the Strasbourg jurisprudence on article 6, and English law as it has developed in recent years and as I have sought to describe it.[31]The case of Teixeira de Castro v Portugal (1998) 28 EHRR 101 concerned a conviction for trafficking in heroin, based mainly on statements of two police officers. The European Court of Human Rights held that the necessary inference from the circumstances was that these officers had 'exercised an influence such as to incite the commission of the offence'. The court concluded there had been a violation of the applicant's right to a fair trial under article 6(1). The court's statement of principle, at p 115, in para 36, is not divergent from the approach of English law. I agree with the observations of my noble and learned friend Lord Hoffmann on the court's application of that principle to the facts of that case.[32]For these reasons, and those given by my noble and learned friends Lord Hoffmann and Lord Hutton, I would make the orders Lord Hutton proposes on these two appeals. LORD MACKAY OF CLASHFERN My Lords,[33]I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Nicholls of Birkenhead, Lord Hoffman and Lord Hutton. I agree with the orders that Lord Hutton proposes in these two appeals, and with the reasons my noble and learned friends have given for so doing.[34]I consider that the detailed analysis of particular circumstances which would justify ordering a stay or which would not do so will be helpful in reaching a conclusion but no two cases are likely to be exactly the same in all their circumstances. I would wish to stress that the ultimate question for the tribunal facing a case in which entrapment is alleged is whether, in the words of my noble and learned friend, Lord Nicholls of Birkenhead, the state through its agents had lured the accused into committing an act or acts forbidden by law for which the state is now seeking to prosecute him. I agree that it is difficult in advance to give a precise and exhaustive definition of what the question means but after the facts have been either agreed or proved, and the helpful illustrations given by my noble and learned friends are taken into account, the tribunal must decide the case by applying the general principle on which these illustrations are based and whose meaning they elucidate. LORD HOFFMANN My Lords,[35]The question in both of these appeals is whether the English law concerning entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead for reaching the same conclusion. I agree with them. English law on entrapment[36]Entrapment occurs when an agent of the state - usually a law enforcement officer or a controlled informer - causes someone to commit an offence in order that he should be prosecuted. I shall in due course have to refine this description but for the moment it will do. In R v Latif [1996] 1 WLR 104, 112 Lord Steyn said that English law on the subject was now settled. It may be summarised as follows. First, entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of entrapment to stay the prosecution on the ground that the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself has caused to transgress. Thirdly, although the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the ground that its admission would have an adverse effect on the fairness of the proceedings, the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all. I shall briefly enlarge upon these three points.

(a) Not a defence

[37]The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States. It is unnecessary to discuss the cogent criticisms which have been made of this doctrine, notably by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369, because it has never had any support in authority or academic writing in this country. Indeed, the majority judgment of Rehnquist J in United States v Russell (1973) 411 US 423, 433, which describes the criticisms as "not devoid of appeal" suggests that its survival in the Federal jurisdiction owes more to stare decisis and its perceived constitutional and pragmatic advantages than to its intellectual coherence.

(b) The jurisdiction to stay proceedings

[38]The court's assertion of such a jurisdiction is of recent origin. It was not even discussed as a possible response to entrapment by the Law Commission in its Criminal Law Report on Defences of General Application (1977) (Law Com No 83) , which dealt with entrapment at pp 32-53. Nor was it mentioned by the House of Lords in R v Sang [1980] AC 402, when it was decided that the court had no discretion to exclude evidence on the ground that the offence had been procured by entrapment or that the evidence had been unfairly obtained. It seems fairly clear, however, that if anyone had suggested such a jurisdiction, it would have been emphatically rejected. Lord Diplock dismissed the notion of a discretion to exclude evidence of an offence procured by entrapment as a "procedural device" to evade the rule that entrapment was not a substantive defence. He would almost certainly have taken the same view of a stay of proceedings, as Mason CJ, Deane and Dawson JJ later did in their joint judgment in Ridgeway v The Queen (1995) 184 CLR 19, 40. The House in Sang's case said that the only constitutionally proper way in which the court could mark its disapproval was by admonishing the police (as Lord Goddard CJ had done in Brannan v Peek [1948] 1 KB 68, 72 and Browning v JWH Watson (Rochester) Ltd [1953] 1 WLR 1172, 1177) and by imposing a light or nominal sentence. It was for the police authorities to take disciplinary action or prosecute policeman or informants who took part in the crime.[39]This disclaimer of court responsibility for convicting a person who was on trial in consequence of an abuse of state power was not to everyone's taste. The Canadian Supreme Court, when it came to consider the matter, thought that it was not good enough. In Amato v The Queen (1982) 69 CCC (2d) 31, 74, Estey J said:
"The repugnance which must be experienced by a court on being implicated in a process so outrageous and shameful on the part of the State cannot be dissipated by the registration of a conviction and the imposition afterwards of even a minimum sentence. To participate in such injustice up to and including a finding of guilt and then to attempt to undo the harm by the imposition of a lighter sentence, so far from restoring confidence in the fair administration of justice, would contribute to the opposite result."
These views accorded with much of what was said by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369. They were subsequently elaborated by Lamer J, speaking for the unanimous Supreme Court of Canada, in R v Mack (1988) 44 CCC (3d) 513. A stay should be granted not because the accused was not guilty or because he could not receive a fair trial or to discipline the police but to protect the integrity of the criminal justice system.[40]The case which eventually took English law down the same path was R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, in which the House of Lords decided that a criminal court had power to inquire into allegations that the accused had been kidnapped abroad by authorities acting in collusion with the UK police and, if it found them proved, had a discretionary jurisdiction to stay the proceedings. Lord Griffiths said that the jurisdiction was necessary to enable the courts to refuse to countenance behaviour which threatened basic human rights or the rule of law. The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power.[41]It was on the authority of Bennett's case that the House decided in R v Latif [1996] 1 WLR 104 that in principle a stay could be granted on the grounds of entrapment. Lord Steyn said, at p 112, that the court should exercise the jurisdiction when "[w]eighing countervailing considerations of policy and justice", the judge considers that the bringing of the prosecution "amounts to an affront to the public conscience." I shall try later to analyse in more detail what this means.

(c) The section 78 discretion

[42]The section 78 discretion enables the judge to safeguard the fairness of the trial. But the entrapped defendant is not ordinarily complaining that the admission of certain evidence would prejudice the fairness of his trial. He is saying that whatever the evidence, he should not be tried at all. The appropriate remedy, if any, is therefore not the exclusion of evidence but a stay of the proceedings. The distinction was clearly made by the Law Commission in its 1977 Report at para 5.29, by Andrew Choo in Abuse of Process and Judicial Stays of Criminal Proceedings (1993), pp. 164-166 and by Potter LJ in R v Shannon [2001] 1 WLR 51.[43]On the other hand, if the court is not satisfied that a stay should be granted and the trial proceeds, the participation of state agents in the commission of the crime may well be relevant to the exercise of the discretion under section 78. As Potter LJ pointed out in Shannon's case at p 68, the question at that stage is not whether the proceedings should have been brought but whether the fairness of the proceedings will be adversely affected by, for example, admitting the evidence of the agent provocateur or evidence which is available as a result of his activities. "So, for instance, if there is good reason to question the credibility of evidence given by an agent provocateur, or which casts doubt upon the reliability of other evidence procured by or resulting from his actions, and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available, admissible and 'untainted' evidence, then the judge may readily conclude that such evidence should be excluded."[44]This question of whether the proceedings should be stayed on the grounds of entrapment should logically be decided before the proceedings have begun. But sometimes proceedings are not conducted entirely logically and an application to exclude evidence under section 78 may be in substance a belated application for a stay. If so, it should be treated as such and decided according to the principles appropriate to the grant of a stay. The European jurisprudence[45]These appeals raise the question of whether the exercise of the power to stay proceedings as affirmed in R v Latif [1996] 1 WLR 104 is sufficient to satisfy the right to a fair trial under Article 6 of the Convention. It is clear from the decisions of the European Court of Human Rights, which must be taken into account under section 2(1)(a) of the Human Rights Act 1998, that the right is not confined to a fair determination of the question of guilt. It is also a right not to be tried at all in circumstances in which this would amount to an abuse of state power.[46]This appears most clearly from the decision in Teixeira de Castro v Portugal (1998) 28 EHRR 101 in which the court decided that "right from the outset, the accused was definitively deprived of a fair trial" (see p 116, para 39 of the judgment) because his conviction was for a drugs offence which had been "instigated" by two police officers. This is the situation of entrapment in which, in an appropriate case, an English court would order a stay of proceedings under the principle in Latif case. But Mr O'Connor, who appeared for Mr Looseley in his appeal and Mr Emmerson, who appeared for the acquitted person in the Attorney General's reference, both submitted that the principles upon which the power to order a stay was exercised in England did not satisfy the requirements of the Convention as stated in de Castro's case. In order to examine this submission, I must first analyse the current English law and then consider whether it is consistent with what the European Court has decided. The application of the entrapment doctrine in England[47]At the highest level of abstraction, the English principles are easy to state. The court is concerned with whether there has been an abuse of executive power, something which is, as Lord Steyn said, in Latif's case [1996] 1 WLR 104, 112, an affront to the public conscience or, as Estey J said in Amato's case (at (1982) 69 CCC (2d) 31,61), whether the court's participation in such proceedings would bring the administration of justice into disrepute. But to leave the matter entirely at that level would incur the criticism, levelled by Lord Diplock in Sang's case [1980] AC 402, 431, that "[w]hat is unfair, what is trickery in the context of the detection and prevention of crime, are questions which are liable to attract highly subjective answers" or the reproach of Rehnquist J that the court was claiming a " 'chancellor's foot' veto over law enforcement practices of which it did not approve": see United States v Russell (1973) 411 US 423, 435 .[48]The objections to entrapment are certainly more specific than a generalised fastidiousness about police practices. The theme which 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.[49]Limited assistance can therefore be gained from distinctions which restate the question rather than provide a criterion for answering it. For example, it has been said that a policeman or paid informer should not act as an agent provocateur; an expression used to signify practices employed by foreigners unacquainted with English notions of decency and fair play: see para 104 of the Report of the Royal Commission on Police Powers and Procedure (1929) Cmd 3297. But what exactly is an agent provocateur? The Royal Commission said that he was "a person who entices another to commit an express breach of the law which he would not otherwise have committed, and then proceeds or informs against him in respect of such offence." This is helpful so far as it goes, but one still has to say what amounts to enticing and what it means to say that the breach of the law would not otherwise have been committed. In other words, the definition assumes but does not define the standards of decency and fair play with which the activity of the agent provocateur is contrasted. Causing and providing an opportunity[50]Many cases place emphasis upon the question of whether the policeman can be said to have caused the commission of the offence, rather than merely providing an opportunity for the accused to commit it with a policeman rather than in secrecy with someone else. There is no doubt that this will usually be a most important factor deciding whether or not the police have overstepped the line between legitimate crime detection and unacceptable crime creation. But a note of caution must be sounded. First, as Lord Steyn said in Latif's case [1996] 1 WLR 104, 111, it is important but not necessarily decisive. Other factors, some of which I shall mention in a moment, may have to be taken into account as well. Secondly, a good deal will depend upon what is accepted as evidence that the accused would have committed the offence with someone else.[51]A good example of a straightforward application of the distinction between causing the commission of the offence and providing an opportunity for it to be committed is the case of Nottingham City Council v Amin [2000] 1 WLR 1071. Mr Amin owned a taxi which was not licensed to ply for hire in Nottingham. Two plain clothes policemen who saw him driving down a street in Nottingham in the middle of the night flagged him down. He stopped and upon request agreed to take them to the destination which they named. When they arrived, the policemen paid the fare and then charged him with the offence of plying for hire without a licence.[52]The stipendiary magistrate excluded the evidence of the policemen under section 78 of the 1984 Act on the ground that they had been agents provocateurs. The prosecutor appealed. As I have already indicated, I think that the use of section 78 was on any view inappropriate. The accused was not saying that the admission of the evidence would prejudice the fairness of his trial. His case was that he should not have been charged with an offence which the policemen had induced him to commit. The proper remedy, if any, would have been a stay of proceedings. But the point is academic because the Court of Appeal treated the case as if it had concerned an application for a stay and applied the same principles.[53]Lord Bingham of Cornhill CJ observed (at p 1075) that to call the policemen agents provocateurs was to express the magistrate's conclusion rather than his reasoning. The question was whether they could properly be so described. This depended on whether the case fell on one side or the other of a line which Lord Bingham formulated in the following terms at pp 1076-1077:
"On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."
[54]In referring to whether the defendant would have behaved in the same way if the opportunity had been offered by anyone else, Lord Bingham obviously did not mean only that the defendant would have responded in the same way to someone who was not a policeman. Since the defendant in such cases ex hypothesi does not know that he is dealing with a policeman, such a condition would invariably be satisfied. What he meant was that the policemen behaved like ordinary members of the public in flagging the taxi down. They did not wave £50 notes or pretend to be in distress.[55]The test of whether the law enforcement officer behaved like an ordinary member of the public works well and is likely be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities ( Director of Public Prosecutions v Marshall [1988] 3 All ER 683) selling videos to children under age ( Ealing London Borough Council v Woolworths plc [1998] Crim LR 58, DC, and operating a private hire vehicle without a licence ( Taunton Deane Borough Council v Brice (DC unreported 10 July 1997). But ordinary members of the public do not become involved in large scale drug dealing, conspiracy to rob ( R v Mealey and Sheridan (1974) 60 Cr App R 59 or hiring assassins ( R v Gill [1989] Crim LR 358; R v Smurthwaite [1994] All ER 898. The appropriate standards of behaviour are in such cases rather more problematic. And even in the case of offences committed with ordinary members of the public, other factors may require a purely causal test to be modified. Suspicion and supervision.[56]In the case of some regulatory offences, the effective administration of the law may require enforcement officers to have the power to make random tests. But normally it is not considered a legitimate use of police power to provide people not suspected of being engaged in any criminal activity with the opportunity to commit crimes. The only proper purpose of police participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. It is not to tempt people to commit crimes in order to expose their bad characters and punish them.[57]This point was made very clearly by Buxton J in Taunton Deane Borough Council v Brice (DC unreported 10 July 1997) when Mr Brice complained that two council employees had tempted him to carry them for reward in his unlicensed vehicle by offering the opportunity of a long and lucrative journey. The judge attached importance to the fact that the council were carrying out a bona fide investigation into complaints about Mr Brice's activities:
"That decision [to use entrapment] was not made for an ulterior motive or in the hope of persuading someone who was not breaking the law to start doing so, but rather to see whether or not evidence was available upon which a prosecution could properly be mounted."
[58]These facts may be contrasted with the example given by Lamer J in R v Mack (1988) 44 CCC (3d) 513, 553 of the police officer who "decides that he wants to increase his performance in court". To this end, he plants a wallet with money in an obvious location in a park and keeps watch. This is unacceptable behaviour because the policeman is preying on the weakness of human nature to create crime for an improper purpose.[59]The principle that the police should prevent and detect crime, not employ themselves in creating it, requires some modification of the causal test. In the case of the planted wallet, the policeman has not "incited, instigated, persuaded, pressurised or wheedled" the hapless offender into stealing it. He has provided him with an opportunity of which he has taken free advantage. Nevertheless, for a different reason, the policeman's conduct is an abuse of state power which the judicial branch of government should not countenance.[60]Closely linked with the question of whether the police were creating or detecting crime is the supervision of their activities. To allow policemen or controlled informers to undertake entrapment activities unsupervised carries great danger, not merely that they will try to improve their performances in court, but of oppression, extortion and corruption. As we shall see, the European Court in Teixeira de Castro v Portugal (1998) 28 EHRR 101 attached great importance to the fact that the police were not acting in the course of an officially authorised investigation.[61]The need for reasonable suspicion and proper supervision are both stressed in the Undercover Operations Code of Practice issued jointly by all UK police authorities and HM Customs and Excise in response to the Human Rights Act 1998. It deals with the employment of "undercover officers", "test purchasers" and "decoys". Undercover officers are defined as specially trained law enforcement officers working incognito "under direction in an authorised investigation" to infiltrate an existing conspiracy, arrest suspected criminals or counter a threat to national security. Test purchasers are appropriately trained law enforcement officers who seek "by means of authorised activity, to establish the nature and/or availability of a commodity or service, the possession, supply or use of which involves an offence". Test purchasers are used mainly in the drug trade. Decoys are officers who place themselves passively in a position to become a victim of crime for the purpose of arresting the offender.[62]Undercover officers may be used only in connection with national security or serious crime and in cases in which the desired result cannot reasonably be achieved by other means: see paragraph 2.2. Authorisation must be given by an Assistant Chief Constable or a Commander in the Metropolitan or City of London Police.[63]The use of a test purchaser must be authorised by a superintendent in the police or National or Scottish Crime Squads and paragraph 3.2 states that the authorising officer must be satisfied that a test purchase is - "required in support of an investigation into a criminal offence concerning the possession, supply or use of a commodity or service and that reasonable grounds have been established prior to the deployment of a test purchaser to suspect that such an offence is being committed."[64]The authorising officer must also be satisfied that the desired result of the test purchase cannot reasonably be achieved by other means and a note for guidance (Note 3A) emphasises that - "Test purchase should not be used as a speculative means of search for the existence of a commodity or service where no other reasonable grounds exist to suspect that criminal offences have been or are being committed."[65]The requirement of reasonable suspicion does not necessarily mean that there must have been suspicion of the particular person who happens to have committed the offence. 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 to whom no suspicion previously attached. This can happen when a decoy (human or inanimate) is used in the course of the detection of crime which has been prevalent in a particular place. Lamer J in R v Mack (1988) 44 CCC (3rd) 513, 553 gave the example of the police planting a handbag in a bus terminal where numerous thefts have recently taken place. A real example in England was Williams v Director of Public Prosecutions (1994) 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 actual crime and the fact that the defendants may not have previously been suspected or even thought of offending was their hard luck. The nature of the offence[66]The provision in the Code of Practice which requires the authorising officer to be satisfied that the desired result of deploying an undercover officer or test purchaser cannot reasonably be achieved by other means shows that the justification for such methods will partly depend upon the nature of the offence. Consensual offences such as dealing in unlawful substances or offences with no immediate victim like bribery or offences which victims are reluctant to report are the most obvious candidates for such methods. So is the infiltration of conspiracies. But the fact that the offence is a serious one is not in itself a sufficient ground for the police to ignore the provisions of the Code or the courts to condone their actions by allowing the prosecution to proceed. Predisposition[67]The United States Federal doctrine that entrapment is a ground for acquittal does not protect a person who was "predisposed" to commit the offence. Predisposition is regarded as showing that the defendant had the necessary guilty intent and was not lured by entrapment into committing an offence which would not otherwise have occurred to him. Predisposition may be proved by, among other things, previous convictions or similar fact evidence. The prospect of such matters going before the jury explains why the defence is rarely invoked in Federal criminal prosecutions. The result is that people with criminal records are fair game for entrapment.[68]Since the English doctrine assumes the defendant's guilt and is concerned with the standards of behaviour of the law enforcement officers, predisposition is irrelevant to whether a stay should be granted or not. The facts which lead the police to suspect that crimes are being committed and justify the use of an undercover officer or test purchaser may also point to the accused and show predisposition. But that is a coincidence. The fact that, for example, the accused has previous convictions is in English law neither necessary nor sufficient. Suspicion may attach to a person who has previously escaped conviction and, contrariwise, the fact that a person has been previously convicted may provide no ground for suspecting a current course of criminality which would justify the use of covert operations. Nor is the fact that a person is a drug addict and therefore likely to know a supplier a sufficient ground in itself for tempting him to move altogether outside his usual way of life and act as intermediary in the supply of a substantial quantity of drugs. Such persons may be particularly vulnerable to unfair pressures of this kind. It may be possible to justify them for the purpose of securing the prosecution and conviction of the supplier but not the prosecution and conviction of the intermediary. Active and passive[69]The need for an authorised and bona fide investigation into suspected criminality is sufficient to show that the question of entrapment cannot be answered simply by asking whether the defendant was given an opportunity to commit the offence of which he freely availed himself. This is important but not enough. The matter is more complicated and other factors have to be taken into account. Likewise, I do not think that even the causal question can be answered by a mechanical application of a distinction between "active" and "passive" conduct on the part of the undercover policeman or informer. In cases in which the offence involves a purchase of goods or services, like liquor or videotapes or a taxi ride, it would be absurd to expect the test purchaser to wait silently for an offer. He will do what an ordinary purchaser would do. Drug dealers can be expected to show some wariness about dealing with a stranger who might be a policeman or informer and therefore some protective colour in dress or manner as well as a certain degree of persistence may be necessary to achieve the objective. And it is been said that undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise. A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary between causing the offence to be committed and providing an opportunity for the defendant to commit it.[70]Likewise it seems to me that when Lord Bingham in Amin's case [2000] 1 WLR 1071, 1077, 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 an 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 grounds 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 had been subjected to such behaviour would compromise the integrity of the judicial system. Teixeira de Castro v Portugal[72]My Lords,[72]these principles are in my opinion entirely consistent with the decision of the European Court of Human Rights in de Castro's case 28 EHRR 101. Both the commission and the court stressed the fact that the policemen, although not acting unlawfully, were not authorised to use undercover operations. Unlike the case of Lüdi v Switzerland (1992) 15 EHRR 173, no investigation had been opened by a judge and there was no judicial or other supervision of the officers. Although the United Kingdom technique for authorising and supervising such operations (as described in the Code of Practice) is very different from the judicial supervision in continental countries, the purpose is the same, namely to remove the risk of extortion, corruption or abuse of power by policemen operating without proper supervision. The European Court obviously had these risks very much in mind when it condemned the methods used to prosecute Mr de Castro.[73]The court also recorded that the "competent authorities", that is to say, the authorities who would normally be expected to authorise such an investigation, had no good reason to suspect that Mr de Castro was a drug trafficker. Nor had the police themselves heard of him until an intermediary told them that he was a person who might be able to supply heroin. They immediately drove to his house in the middle of the night, said that they wanted to buy 200,000 escudos worth of heroin and produced a roll of banknotes. Mr de Castro obtained the heroin from an intermediary and, apart from the intermediary's suggestion that he might be able to supply, there was no other evidence that he had been dealing in heroin.[74]My Lords,[74]every case depends upon its own facts but there is nothing in the general principle applied by the European court or the cluster of factors to which it attached importance which suggests any difference from the current English approach to entrapment. The contrary submission depends upon an excessively literal and technical analysis of some of the language used by the court. So for example, the court said (at p 116, para 38) of the judgement that - "The two police officers did not confine themselves to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence".[75]This sentence is relied upon for the proposition that even in an authorised undercover operation, the officer must take no active step such as offering to buy an illegal substance. Such conduct amounts to "incitement" of the offence. I do not believe that the court intended to lay down such a rigid and prescriptive rule. The description of the policemen's conduct must be seen as one of the various factors which led to the court's conclusion that there had been an abuse of police power which denied the defendant a fair trial The certified questions[76]This brings me to the certified questions in the two appeals before the House. First, R v Looseley , in which the certified question was:
"Should the judge have refused to admit the evidence of the undercover police officer "
Rob" because the role played by "Rob" went beyond observation and involved asking the appellant to supply him with heroin, a request to which, on the judge's findings, the appellant readily agreed."[77]The facts of the case are stated in the speech of my noble and learned friend, Lord Hutton, and I need not repeat them. The factors to which I attach importance are the following. First, Rob was acting in the course of an authorised undercover operation arising out of concern about the supply of Class A drugs in the Guilford area. Secondly, the Wooden Bridge public house was reasonably suspected to be a focal point for the trade. Thirdly, having obtained the defendant's telephone number from someone at the public house as a potential source of supply, Rob telephoned and asked him in general terms whether he could "sort us out a couple of bags", to which the defendant said yes. Rob might just as well have said, "Are you by any chance a heroin dealer?" and received an affirmative reply.[78]From that point, it seems to me, Rob and his superiors who were controlling his operations had reasonable cause to suspect that the defendant was a dealer. The subsequent offer to purchase was in the course of a legitimate undercover purchase and not calculated to cause him to do anything which he would not have done in response to a similar request from any customer. I attach little importance to the fact that he "readily agreed" to sell. This seems to me to be neutral, because the question is not so much his behaviour but that of the police. It means only that the police did not have to take any steps to persuade him which might have taken them across the boundary between giving him the opportunity to commit the offence and causing him to do so. The facts are in my opinion miles away from de Castro's case 28 EHRR 101, and I think that the judge was right to reject the application to exclude Rob's evidence under section 78 and should for the same reasons have refused an application for a stay.[79]Mr O'Connor also submitted that the telephone call to the defendant and the request for drugs were an infringement of the right to respect for his private life under article 8. I regard this submission as unsustainable. The defendant was on his own admission in the business of dealing in drugs. He responded willingly to solicitation. The policeman did not invade his privacy any more than a customer who walks into a shop. The fact that the business was unlawful and this particular solicitation was from a policeman does not make it a breach of his human rights: see Lüdi v Switzerland 15 EHRR 173. I would therefore answer the certified question no and dismiss the appeal.[80]In the Attorney-General's Reference No.3 of 2000 the question referred to the House by the Court of Appeal is: "In a case involving the commission of offences by an accused at the instigation of undercover police officers, to what extent, if any, have:(i) the judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984; and(ii) the power to stay the proceedings as an abuse of the court; been modified by article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights".[81]To this question I would give the same answer as the Court of Appeal, namely that no modification is required. But, like my noble and learned friend, Lord Hutton, I respectfully disagree with the Court of Appeal's view that the judge was wrong to stay the proceedings. In my opinion he was entitled to reach the view that he should. On the statements before him, which by consent he was invited to accept as true, the defendant had never dealt in heroin. He was induced to procure heroin for the undercover officer by the prospect of a profitable trade in smuggled cigarettes. The judge was entitled to take the view that even if this was an authorised operation, the police had caused him to commit an offence which he would not otherwise have committed. LORD HUTTON My Lords,[82]The issue which arises in these two cases is what conduct by undercover police officers in obtaining evidence against a drugs dealer will constitute entrapment of such a nature that either a prosecution based on that evidence will be stayed as an abuse of process or the evidence will be excluded under section 78 of the Police and Criminal Evidence Act 1984.[83]The two cases before the House have been heard together. One case is the appeal of Grant Spencer Looseley against his conviction at Guildford Crown Court on three counts of supplying or being concerned in supplying to another a Class A controlled drug (heroin). The other case is a reference brought by the Attorney General pursuant to section 36 of the Criminal Justice Act 1972 and consequent on the acquittal of a defendant charged on two counts of supplying or being concerned in supplying to another a Class A controlled drug (heroin). The appeal of Looseley[84]The prosecution case was that the appellant and another defendant named Harris had supplied heroin to an undercover police officer known as "Rob". In 1999 police in Guildford mounted an undercover operation because of their concern about the trade in Class A drugs in that area. One focus of the operation was a public house where a man provided Rob with the appellant's first name and telephone number and suggested to him that he should telephone the appellant if he wished to obtain drugs. Rob telephoned the appellant and said to him, "Hello, mate, can you sort us out a couple of bags?", and the appellant replied, "Er yes, I'll sort you out, mate." The appellant then gave the officer directions to his flat. The officer went to the flat, and a price of £30 for half a gram of heroin was agreed. The appellant and Rob then drove to the flat of Harris in Rob's car. The appellant left the car taking £30 from Rob. He returned a few moments later saying that he had "the stuff". The appellant and Rob then returned to the appellant's flat where the appellant took a small package from his mouth, opened it, took a small quantity of the substance in the package for himself, and gave the remainder to Rob. On analysis the package was found to contain 152 milligrams of heroin at 100% purity. This transaction was the subject of count 2 of the indictment.[85]Four days later Rob again telephoned the appellant, who agreed to "sort him out". Rob and the appellant met at the public house. They then drove in Rob's car to a theatre in Guildford. The appellant left the car, once again taking £30 of the officer's money with him. When he returned he handed a cling-film ball to Rob. They then went to the appellant's flat, where the appellant took a small amount from the cling-film ball and returned the remainder to Rob. On this occasion the wrap was found, when analysed, to contain 132 milligrams of heroin at 70% purity. This transaction was the subject of count 3 of the indictment.[86]Three days later Rob once again went to the appellant's flat and asked if the appellant could supply him with a gram of heroin. The appellant spoke to someone by telephone. Rob and the appellant went to another address. The appellant took £60 from the officer, and returned with a cling-film wrap. The appellant told Rob that this was only half the amount but the remainder would be ready in an hour. In fact, although the officer returned to the appellant's flat several times that afternoon, no further drugs were supplied to him. The wrap that he did receive was found, on analysis, to contain 224 milligrams of heroin at 100% purity. This transaction was the subject of count 4 of the indictment.[87]At the trial in the Crown Court it was submitted as a preliminary issue to the trial judge, Judge Bassingthwaighte, that the indictment ought to be stayed as an abuse of the process of the court or, alternatively, that the evidence of Rob should be excluded pursuant to the discretion conferred on the judge by section 78(1) of the Police and Criminal Evidence Act 1984 which provides:
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
[88]There was a voir dire and the judge heard evidence from Rob and from Detective Inspector Marjoram, the officer in charge of the operation which gave rise to the indictment. On the conclusion of the voir dire the judge delivered his ruling in which he declined either to stay the indictment as an abuse of process or to exclude the evidence in the exercise of his discretion under section 78 of the 1984 Act. In the course of his ruling the judge referred to a number of English authorities and also to the judgment of the European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EHRR 101. At pp 9 and 10 the judge said:
"I do not understand from any of the cases to which I have referred ( Teixeira included) that there is a discernible principle that evidence obtained as a result of undercover observation or infiltration is inadmissible. The guiding principle seems to be as identified in the English cases, that the commission of offences should come about without the prompting of undercover officers in the sense that they provoke or incite the commission of offences which would not otherwise have occurred without their intervention. . . . "
In Texeira's case it also seemed of importance to the court that the applicant was not known to be involved in the drugs scene, possibly because he had no convictions for drug offences. The court seems to suggest that incitement thus became more of a consideration because it involved someone not known to be involved in that world, and I shall return to that issue in due course. . . . "While I bear the provisions of article 6 of the Convention in mind, I also remind myself that the concept of proportionality referred to in the case of Soering v. United Kingdom (1989) 11 EHRR 439, indicates that it is inherent to the whole of the Convention that there is a search for the fair balance between the demands of the general interests of the community and the requirements of the protection of the individual's human rights." Referring to the case of Teixeira de Castro 28 EHRR 101 the judge said at p 12: "The court's finding is conclusively expressed in para 39 at p 116 of the report. It is based upon the fact that in the court's opinion the officers instigated an offence which would not have occurred without their intervention. That is the essence of the ruling, and while I note comments about officers being active and passive, which our own Court of Appeal have also made, I do not take it as expressed in Texeira that simply because an undercover officer may behave actively that conduct is prohibited and may not found a prosecution. Active conduct is not of course necessarily the same as incitement. Certainly, however, caution is expressed, and rightly expressed, about undercover officers moving from passive to active roles, but I take Teixeira to say that what must occur in all such situations is an assessment of all the relevant circumstances, just as the Court of Appeal has said in England and Wales. As I have[89]Following this ruling the appellant changed his pleas on counts 2 to 4 to guilty and the sentencing of the appellant was postponed until a date to be fixed.[90]The appellant appealed against his conviction to the Court of Appeal and the appeal was dismissed. In delivering the judgment of the Court of Appeal Roch LJ stated:
"30. In our judgment the law is clear, and the law is consistent with the European Convention of Human Rights and the judgment of the European Court of Human Rights, namely that if an accused person's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by a law enforcement officer, then the evidence of that law enforcement officer should be excluded by the trial judge exercising his power under section 78 of the 1984 Act. In many cases were such a ruling to be made the case against the accused would not be able to proceed further. On the other hand, if the law enforcement officer has done no more than give an accused the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else, then there is no reason why the officer's evidence should be excluded and the accused's trial should proceed with that evidence being admitted. No doubt there will be cases, of which this was one, where such a ruling will lead to a change of plea. "31. On which side of that line evidence of a law enforcement officer will fall is primarily a question of fact for the trial judge to decide when making his ruling. It is of significance that in the Teixeira case in the judgment of the European Court at paragraph 34 this appears: 'The court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.'"
The Court of Appeal certified the following point of law of general public importance for the opinion of the House:
"Should the judge have refused to admit the evidence of the undercover police officer "
Rob" because the role played by "Rob" went beyond mere observation and involved asking the appellant to supply him with heroin, a request to which, on the judge's findings, the appellant readily agreed?" The Attorney General's Reference[91]The defendant ("the acquitted person") appeared in the Crown Court at Derby before Judge Appleby QC charged on one count with the offence of supplying to another a Class A controlled drug (heroin) and on a second count with the offence of being concerned in supplying to another a Class A controlled drug (heroin).[92]The circumstances in which it was alleged the offences were committed were summarised as follows by

Judge Appleby in his ruling at pp 8 and 9:

"Police officers see a man called S and they ask him if he wants to buy — these are undercover officers — some [contraband] cigarettes and so on. He went with them to where the defendant . . . . is. S goes to the car where [the defendant] was. Cigarettes are handed over. There is a conversation about cigarettes and the conversation is to do with cigarettes. Thereafter the conversation with the defendant is: 'Can you sort out any brown?' Later on many, many conversations with the defendant, offering cigarettes and persuading him, within reason initially, to provide them with a Class A drug. Eventually the defendant obtains drugs from another source. It is on record that he said at one stage: 'I'm not really into heroin myself.'"
It is also relevant to record that when interviewed by the police after his arrest the acquitted person said that he had had "nothing at all" to do with heroin, and that he was "not interested" in it, but that he had become involved because two men had approached him, offering to sell him cheap cigarettes. He said that the officers "were getting me cheap fags, so as far as I was concerned a favour for a favour."[93]At the commencement of the trial the defence applied both for the exclusion of the evidence of the undercover police officers under section 78 of the 1984 Act and for a stay of the prosecution as an abuse of process. The trial judge approached the matter as an application for a stay on grounds of abuse of process and granted the stay. On the next day the trial judge lifted the stay, the prosecution offered no evidence and verdicts of not guilty were entered.[94]In his ruling, after summarising the facts in the passage which I have already set out,

Judge Appleby said at p 9:

"An elaboration of those facts by Mr Munt on behalf of the defence, admitted facts, makes it absolutely clear to me that in this case these officers went further than was permissible and in fact incited and procured this defendant to commit an offence he would not otherwise have committed."
The judge then set out passages from the judgment of the European Court of Human Rights in Teixeira de Castro v Portugal 28 EHRR 101 and continued at pp 13 and 14:
"The judgment of the European Court of Human Rights goes on to say this: 'In the light of all these considerations, the court concludes that the two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed.' I repeat those words, and with considerable hesitation and reluctance in the light of all the considerations, I come to the conclusion that the police officers in this case and their actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. And because of that, on the basis of that court's decision, the intervention of the officers and its use in the criminal proceedings, these criminal proceedings, would mean that right from the outset the applicant would be deprived of a fair trial."
[95]On the acquittal the Attorney General referred the following point of law to the Court of Appeal for its opinion:
"In a case involving the commission of offences by an accused at the instigation of undercover police officers, to what extent, if any, have: (i) The judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984; and (ii) the power to stay the proceedings as an abuse of the court; been modified by article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights?"
[96]In delivering the judgment of the Court of Appeal Kennedy LJ stated, at para 35:
"In considering in a case of this type an application either to stay or to exclude evidence pursuant to section 78 the court will be concerned both with the freedom of action of the accused and with the propriety or otherwise of the actions of the undercover officers. In most cases the principal question will be whether the officers did no more (whether by active or passive means) than to afford the accused the opportunity to offend, of which he freely took advantage in circumstances where it appears that he would have behaved in a similar way if offered the opportunity by someone else or whether, on the other hand, by means of unworthy or shameful conduct, they have persuaded him to commit an offence of a kind which otherwise he would not have committed. That approach is in our judgment consistent without modification with article 6. Teixeira de Castro must be considered on its own facts in the setting of Portuguese criminal procedure. It will not always be easy in a particular case to say whether the accused freely accepted an opportunity and would have acted similarly if it had been presented by someone else."
At the conclusion of his judgment, referring to the decision of

Judge Appleby, Kennedy LJ stated, at para 48:

"The judge did not hear evidence and thus did not reach any conclusions of primary fact. He reached the conclusion he did with evident reluctance. He formed the view that the decision in Teixeira de Castro robbed him of the power to make any decision other than he did, and created a situation where the only test to be applied was whether the officer was acting as an agent provocateur in the sense that he was enticing the accused to commit that particular offence which he did. In that we are satisfied he fell into error. He further appears to have directed himself that the accused's proven history of dealing on some scale in Class B drugs was of no relevance. Since his disposition to commit the offence in the absence of persuasion by the officers was directly relevant, that was a misdirection, as Mr Emmerson only faintly disputed. If, on the facts we have recited, the judge had asked himself whether the undercover officers had done more than give the accused an opportunity to break the law of which the accused had freely taken advantage then, in our judgment, he would have answered that question in the negative, and he would not have ruled as he did."
Having delivered its judgment the Court of Appeal referred the point of law to the House for its opinion. The issue[97]The problem which arises where there has been entrapment by police officers is one which has been considered by appellate courts in many jurisdictions. It is apparent from the authorities to which I am about to refer that the approach of the English courts has been to consider whether the prosecution should be stayed as an abuse of process or whether the evidence obtained by the police officers should be excluded on the ground of unfairness. As the authorities cited by my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann show, in the United States entrapment is held to be a substantive defence, in Canada a stay of proceedings is granted, and in Australia evidence obtained by unlawful or improper conduct on the part of law enforcement officers is excluded on the grounds of public policy.[98]In R v Latif [1996] 1 WLR 104 Lord Steyn in his speech, with which the other members of the House agreed, considered the circumstances in which the conduct of law enforcement officers should cause a prosecution to be stayed for abuse of process. It had been established by this House in R v Sang [1980] AC 402 that entrapment is not a substantive defence under English law, in the sense that it does not have the effect that no crime is committed by the alleged principal offender as, notwithstanding the entrapment, he has the mens rea and commits the actus reus to constitute the offence. After recognising this and commenting that it was not the end of the matter Lord Steyn stated the dilemma in this way, at p 112E:
"If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime."
The answer which Lord Steyn gave, at pp 112G and 113B, was as follows:
"The weaknesses of both extreme positions leaves only one principled solution. The court has a discretion: it has to perform a balancing exercise . . . . ". . . . the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."
On the facts before the House in that case Lord Steyn said, at p 113D:
"The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour of the customs officer was venial compared to that of Shahzad. In these circumstances I would reject the submission that the judge erred in refusing to stay the proceedings."
[99]In Nottingham City Council v Amin [2000] 1 WLR 1071 a taxi driver licensed by the local authority was hailed by two plain clothes police officers while driving in an area not covered by his licence. He stopped and took the two officers to the address they requested in return for a fare. He was prosecuted for using his taxi to ply for hire when he had not previously obtained a licence to operate in that area. At the hearing of the prosecution the stipendiary magistrate ruled that having regard to the effect of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) the evidence of the police officers, whom he described as agents provocateurs, should be excluded from evidence under section 78 of the Police and Criminal Evidence Act 1984. On appeal by the local authority the Divisional Court allowed the appeal and remitted the case to the magistrate with a direction to convict. Lord Bingham of Cornhill CJ stated, at p 1076H:
"On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."
[100]Therefore the approach taken by the English cases is that it is necessary to balance 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. In carrying out this balancing exercise it will be necessary for the court in each individual case to take into account a number of factors. These factors have been discussed in the speeches of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann and I am in full agreement with the views which they express. I further consider, with respect, that the approach to be taken by a court and the matters to be considered are well set out in the dissenting judgment of McHugh J in the High Court of Australia in Ridgeway v The Queen (1995) 184 CLR 19, 92 (save that, in my opinion, a prosecution should not be permitted to proceed when the evidence had been obtained by threats):
"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."
[101]In balancing the relevant factors the English courts have placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer.[102]In considering the distinction (broadly stated) between a person being lured by a police officer into committing an offence so that it will be right to stay a prosecution, and a person freely taking advantage of an opportunity to commit an offence presented to him by the officer, it is necessary to have in mind that a drugs dealer will not voluntarily offer drugs to a stranger, unless the stranger first makes an approach to him, and the stranger may need to persist in his request for drugs before they are supplied. Therefore, in my opinion, a request for drugs, even if it be persistent, need not be regarded as luring the drugs dealer into committing a crime with the consequence that a prosecution against him should be stayed. If a prosecution were not permitted in such circumstances the combating of the illegal sale of drugs would be severely impeded, and I do not consider that the integrity of the criminal justice system would be impaired by permitting a prosecution to take place. In my opinion a prosecution should not be stayed where a police officer has used an inducement which (in the words of McHugh J in Ridgeway v The Queen 184 CLR 19, 92) "is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity". This is in conformity with the approach taken by the United States Supreme Court in Sorrells v United States (1932) 287 US 435, 441 where the court stated:
"It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises . . . . The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute."
See also United States v Russell (1973) 411 US 423, 435 and 436. Section 78 of the Police and Criminal Evidence Act 1984[103]There is one further observation which I wish to make in respect of the English authorities. In many of the cases where the issue of entrapment has been considered no detailed consideration has been given to the question whether the prosecution should be stayed as being an abuse of process or whether the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the ground that its submission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. However in R v Shannon [2001] 1 WLR 51 the Court of Appeal gave consideration to the relationship between entrapment and section 78 and, at p 68C, Potter LJ stated in relation to section 78:
"the ultimate question is not the broad one: is the bringing of proceedings fair (in the sense of appropriate) in entrapment cases. It is whether the fairness of the proceedings will be adversely affected by admitting the evidence of the agent provocateur or evidence which is available as the result of his action or activities. So, for instance, if there is good reason to question the credibility of evidence given by an agent provocateur, or which casts doubt on the reliability of other evidence procured by or resulting from his actions, and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available, admissible and 'untainted' evidence, then the judge may readily conclude that such evidence should be excluded. If, on the other hand, the unfairness complained of is no more than the visceral reaction that it is in principle unfair as a matter of policy, or wrong as a matter of law, for a person to be prosecuted for a crime which he would not have committed without the incitement or encouragement of others, then that is not itself sufficient, unless the behaviour of the police (or someone acting on behalf of or in league with the police) and/or the prosecuting authority has been such as to justify a stay on grounds of abuse of process."
I am in agreement with this analysis which accords with the statement of Lord Steyn in R v Latif [1996] 1 WLR 104, 112G:
"If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such a trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system."
[104]Therefore I consider that if a defendant wishes to rely on entrapment he should normally do so by applying before the proceedings begin for a stay on the ground of abuse of process. If his application is refused it will still be open to him to seek to exclude the evidence under section 78 on the kind of ground stated by Potter LJ. But I agree with my noble and learned friend, Lord Hoffmann, that if a later application to exclude evidence under section 78 is, in substance, an application to stay on the ground of entrapment, a court should apply the principles applicable to the grant of a stay. The judgment of the European Court of Human Rights in Teixeira de Castro v Portugal[105]The European Court sets out the facts at (1998) 28 EHRR 101, 104-105:
"9. In connection with an operation monitoring drug-trafficking, two plain clothes officers of the Public Security Police (PSP) from the Famaliçao police station approached an individual, VS, on a number of occasions. He was suspected of petty drug-trafficking in order to pay for drugs—mainly hashish— for his own consumption. They hoped that through VS they would be able to identify his supplier and offered to buy several kilograms of hashish from him. Unaware that they were police officers, VS agreed to find a supplier. However, despite being pressed by the two officers, he was unable to locate one. 10. Shortly before midnight on 30 December 1992 the two officers went to VS's home saying that they were now interested in buying heroin. VS mentioned the name of Francisco Teixeira de Castro as being someone who might be able to find some; however, he did not know the latter's address and had to obtain it from FO. All four of them went to the applicant's home in the purported buyers' car. The applicant came outside at FO's request and got into the car where the two officers, accompanied by V.S., were waiting. The officers said that they wished to buy 20 grams of heroin for 200,000 escudos and produced a roll of banknotes from the Bank of Portugal. 11. Mr Teixeira de Castro agreed to procure the heroin and, accompanied by FO, went in his own car to the home of another person, JPO. The latter obtained three sachets of heroin, one weighing 10 grams and the other two five grams each, from someone else and, on his return, handed them over to the applicant in exchange for a payment, which, though the precise figure is not known, exceeded 100,000 escudos. 12. The applicant then took the drugs to VS's home; VS had in the meantime returned there and the two police officers were waiting outside. The deal was to take place in the house. The officers went inside at VS's invitation; the applicant then took one of the sachets out of his pocket whereupon the two officers identified themselves and arrested the applicant, VS and FO, shortly before 2 am. They searched all three and found the applicant to be in possession of another two sachets of heroin, 43,000 escudos in cash and a gold bracelet."
[106]The applicant, Mr Teixeira de Castro, was prosecuted before a criminal court in Portugal which convicted him and sentenced him to six years imprisonment. The applicant appealed to the Supreme Court in Portugal against his conviction but the Supreme Court dismissed his appeal. Before the European Court of Human Rights the applicant complained that he had not had a fair trial in violation of article 6(1) of the Convention in that he had been incited by plain clothes police officers to commit the offence of which he was later convicted. The European Court upheld the applicant's complaint and held that there had been a violation of article 6(1).[107]At p 115 of its judgment the court stated:
"36. The use of undercover agents must be restricted and safeguards put in place even in cases concerning the fight against drug-trafficking. While the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement."
The essence of the reasoning of the court is, at pp 115-116 of its judgment:
"38. In the instant case it is necessary to determine whether or not the two police officers' activity went beyond that of undercover agents. The court notes that the Government have not contended that the officers' intervention took place as part of an anti-drug-trafficking operation ordered and supervised by a judge. It does not appear either that the competent authorities had good reason to suspect that Mr Teixeira de Castro was a drug-trafficker; on the contrary, he had no criminal record and no preliminary investigation concerning him had been opened. Indeed, he was not known to the police officers, who only came into contact with him through the intermediaries, VS and FO. Furthermore, the drugs were not at the applicant's home: he obtained them from a third party who had in turn obtained them from another person. Nor does the Supreme Court's judgment of 5 May 1994 indicate that, at the time of his arrest, the applicant had more drugs in his possession than the quantity the police officers had requested thereby going beyond what he had been incited to do by the police. There is no evidence to support the Government's argument that the applicant was predisposed to commit offences. The necessary inference from these circumstances is that the two police officers did not confine themselves to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence. Lastly, the court notes that in their decisions the domestic courts said that the applicant had been convicted mainly on the basis of the statements of the two police officers. 39. In the light of all these considerations, the court concludes that the two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial. Consequently, there has been a violation of article 6(1)."
[108]In my opinion the principle stated by the court is that the fairness of a trial is violated if the crime for which the defendant is prosecuted has been incited or instigated by police officers: thus the court concluded its reasoning, at p 116, in paragraph 39 by stating that:
"the two police officers' actions went beyond those of undercover agents because they instigated the offence and there was nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial. Consequently, there has been a violation of article 6(1)."
[109]Accordingly I consider that the approach of the English courts and of McHugh J in Ridgeway v The Queen 184 CLR 19 is in no way inconsistent with the ratio decidendi of the European Court in Texeira de Castro . As the Lord Chief Justice, Lord Bingham of Cornhill, stated in Nottingham City Council v Amin [2000] 1 WLR 1071, 1076-1077, there would be a violation of the concept of fairness "if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer."[110]In some cases in England the argument has been advanced by counsel for the defence that the European Court has laid down as a principle that unless the police officers act "in an essentially passive manner" they have incited the commission of the offence and that, in consequence, there must be a breach of article 6(1). Defence counsel point to the penultimate sentence at p 116, para 38 in support of this submission. Thus in Amin is case [2000] 1 WLR 1071, 1080G, Lord Bingham described counsel for the defendant as advancing the following argument:
"None the less, Mr Beloff is entitled to, and does, attach significance to the precise language which the court uses in paragraph 38 of the judgment. He submits that the two police constables in Nottingham did not confine themselves to investigating the defendant's criminal activity and did not do so in an 'essentially passive manner.' Accordingly he submits that they are to be regarded, in the light of that authority, as having instigated the offence or incited it and so as having acted as agents provocateurs so as to render the proceedings as a whole unfair, there being no other significant evidence against the defendant."
Lord Bingham rejected this argument at p 1080H stating:
"While I for my part am willing to accept that, on a precise and literal reading of the court's language, Mr Beloff is entitled to make that submission, I am wholly unwilling to accept the far-reaching proposition which he bases on it. It seems to me that that conclusion has to be understood in the context of the whole argument before the court on that occasion and on the special facts of that case. It is true that in the present case the criminal activity alleged was much more minor. It is also true that the facts are much simpler and that they simply cannot lend themselves to the construction that this defendant was in any way prevailed upon or overborne or persuaded or pressured or instigated or incited to commit the offence. The question for the stipendiary magistrate was whether, on the facts which he found, the admission of this evidence had such an adverse effect on the fairness of the proceedings that he should exclude it, or whether (to put the test in a different way) the effect of admitting it was to deny the defendant a fair trial. In my opinion the only possible answer to both questions was 'No.'"
In my respectful opinion Lord Bingham was right to conclude that some of the wording of paragraph 38 was based on the special facts of that case and it is relevant to observe that in its judgments the court has often emphasised that it is concerned with the particular facts of the case before it: see per Lord Bingham in Brown v Stott [2001] 2 WLR 817, 836C.[111]The particular facts which the court emphasises in paragraph 38 included the following:(a) the police officers' intervention did not take place as part of an anti-drug-trafficking operation ordered and supervised by a judge;(b) the competent authorities had no good reason to suspect that Mr Teixeira de Castro was a drug-trafficker; he had no criminal record and no preliminary investigation concerning him had been opened;(c) there was no evidence to suggest that Mr Teixeira de Castro was predisposed to commit offences.[112]Therefore I am of opinion that the court did not intend to state as a general principle that there was a breach of article 6 of the Convention whenever police officers gave a person an opportunity to break the law and he took advantage of that opportunity in circumstances in which it appeared that he would have behaved in the same way if some other person had given him the opportunity to commit a similar crime. In my opinion if a person freely takes advantage of an opportunity to break the law given to him by a police officer, the police officer is not to be regarded as inciting or instigating the crime in the context of the prohibition of entrapment. The conduct of the police officer should not be viewed as constituting incitement or instigation where, as McHugh J states in Ridgeway v The Queen 184 CLR 19, 92, that conduct is "consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity", and I do not consider that the judgment of the court lays down a principle to the contrary.[113]In the case of Looseley, as appears from his ruling, the judge considered that tape recordings which were played to him gave a degree of support to the contention of the prosecution that Looseley was an active and current drugs dealer. The undercover police officer made contact with Looseley in the course of an undercover police operation concerning the supply of drugs in the Guildford area. A senior police officer had authorised the operation and had overseen its progress. The judge found that the undercover officer had presented himself to Looseley as an ideal customer for a drugs deal, but the judge also found specifically that he did not go beyond that portrayal and that he presented himself exactly as someone in the drugs world would expect to see a heroin addict. There then arose a relationship between Looseley and the officer during which Looseley supplied him with heroin on more than one occasion. The judge found that there was evidence to show that Looseley was steeped in the drug culture and encouraged the officer, whom he probably saw as a lucrative customer, to take more heroin from him.[114]The judge's conclusion in the light of the facts before him was that, whilst the officer presented himself as an ideal customer so far as a drugs dealer was concerned, the officer did not do anything other than present himself as such, and accordingly the conduct of the officer did not constitute incitement. In my opinion the judge's assessment, which he made in the course of a lucid and careful ruling, was one which he was fully entitled to make.[115]A further argument was advanced by Mr O'Connor on behalf of Looseley that the request to him for drugs by the police officer was a violation of his right to respect for his private life under article 8 of the European Convention. I consider for the reasons given by my noble and learned friend, Lord Hoffmann, that that argument is without substance. Accordingly I would answer the certified question in the negative and would dismiss Looseley's appeal.[116]In the case giving rise to the Attorney General's Reference I respectfully differ from the view taken by the Court of Appeal and I consider that the judge was right to rule that the prosecution should be stayed on the ground that the police officers had instigated the offence. It was clear on the facts that the reason why the acquitted person had supplied heroin to the officers was because they repeatedly offered to supply, and did supply to him, cut-price cigarettes and he wished to continue to benefit from that supply. When he was interviewed by the police after his arrest he said that he was not interested in heroin, but that he had become involved because two men had approached him offering to sell him cheap cigarettes. He said it was "a favour for a favour". Therefore the officers did more than give him the opportunity to commit the offence of supplying heroin— they instigated the offence because they offered him inducements that would not ordinarily be associated with the commission of such an offence.[117]I would answer the point of law referred by the Attorney General by stating that in relation to the exercise of the judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984 and the exercise of the power to stay proceedings as an abuse of process of the court, the principles of English law as set out in the authorities to which reference has been made in this speech are in conformity with article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights and do not require modification. LORD SCOTT OF FOSCOTE My Lords,[118]I have had the advantage of reading in advance the opinions of my noble and learned friends, Lord Hoffmann, Lord Nicholls of Birkenhead and Lord Hutton, and am in complete agreement with their analysis of the nature of an entrapment defence in criminal proceedings.[119]In R v Sang [1980] AC 402 this House made clear that there was no defence of "entrapment" known to English law (see Lord Diplock at pp 432B and Lord Salmon at p 443B/C). If "defence" is restricted to meaning a contention that if accepted would negative guilt, the proposition that there is no defence of entrapment remains as true today as it was in 1980. If the act done by an individual constitutes the actus reus of the crime and the individual has the requisite mens rea it is no defence for him to say that he did the act at the invitation or instigation or with the encouragement of someone else. And if the "someone else" turns out, unbeknownst to the individual at the time, to be a police officer or some other representative of the executive, the ingredients necessary to constitute the commission of the offence are as much present as they would be if the "someone else" had no connection at all with the authorities.[120]Neither section 78 of the Police and Criminal Evidence Act 1984 nor article 6 of the European Convention on Human Rights has elevated "entrapment" to the status of a defence in the sense described above. Section 78 gives the court a discretion to exclude evidence if "the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". Where evidence has been obtained by entrapment this condition for its exclusion may in some cases be satisfied. Where the evidence is excluded the consequence in some cases may be that the prosecution cannot succeed. But the entrapment circumstances that will have brought about this result will not have constituted a defence in the sense described above.[121]The entrapment circumstances may in some cases be such that a prosecution would be "an affront to the public conscience" (Lord Steyn in R v Latif [1996] 1 WLR 109, 112) or "deeply offensive to ordinary notions of fairness" (Lord Bingham of Cornhill CJ in Nottingham City Council v Amin [2000] 2 WLR 1071, 1076). In cases of that sort the court has an inherent jurisdiction to stay the prosecution (see R v Horseferry Road Magistrates' Court Ex p Bennett [1994] 1 AC 42). A successful application to stay a prosecution on the ground of entrapment enables the accused to escape from the charge. But the entrapment still cannot be properly described as a defence. It does not negative any of the ingredients requisite for guilt. The court's decision to allow the accused to go free is based upon its disapproval of the behaviour of the police officers, not upon the prosecution's failure to establish those ingredients.[122]Article 6 entitles an accused to a fair trial "in the determination … of any criminal charge against him …". This re-states what was already English law. It is a fundamental principle of English law that the court is under the duty to ensure the accused a fair trial (see R v Sang [1980] AC 402). The fairness of a trial may be compromised if the prosecution is allowed to rely on evidence obtained by unfair means. The court's discretion under section 78 of the 1984 Act to exclude evidence (see R v Khan (Sultan) [1997] AC 558) provides the remedy in domestic law and, in my opinion, enables the domestic law to accord with what is required for compliance in this area with article 6 (see Khan v United Kingdom (2000) 8 BHRC 310).[123]In Teixeira de Castro v Portugal (1998) 28 EH RR 101, the European Court of Human Rights considered entrapment in the context of article 6. The facts of the case and the relevant paragraphs of the court's judgment are set out in the opinion of my noble and learned friend, Lord Hutton. I need not repeat them. The court concluded, at p 116, para 39, that the intervention of the police officers and their instigation of the offence with which the accused had been charged "meant that, right from the outset, the applicant was definitively deprived of a fair trial" and that, consequently, there had been a violation of article 6(1).[124]My Lords,[124]I confess that I have found it rather difficult to follow why the facts recited in the European Court's judgment rendered the trial unfair. But, on the footing that in the particular circumstances of that case it would have been unfair to Mr de Castro to allow the prosecution to put in evidence the facts that had followed the police officers' intervention and instigation, the application in English law of section 78 would have produced the same result.[125]It is, in my opinion, important to keep clear and distinct, whether under domestic law or for article 6 purposes, matters which constitute a defence properly-so-called and matters which may provide a reason for excluding particular evidence. It is well established that documents and information held by the prosecution which may prove the accused's innocence should be disclosed (see R v Keane (1994) Cr App R 1). If the prosecution is unwilling to disclose them, for example because they may disclose the identity and place in danger an informant, the prosecution will usually have to be abandoned. But documents and material which relate only to the question whether the admission of particular evidence would be unfair need not lead to so stark a conclusion. In considering whether police officers had sufficient existing grounds for suspecting an individual of involvement in crime in order to justify their undercover involvement in the commission of the offence charged, the police should not, in my opinion, be expected to disclose the source of their suspicions if to do so would reveal the identity of an informant or prejudice their ability to obtain similar information in the future. Entrapment allegations in resisting a prosecution must not be allowed to achieve the status of a true defence. Otherwise the balance to which my noble and learned friend, Lord Hutton, referred in paragraph 19 of his opinion would, I fear, tilt unacceptably towards those who commit crimes and to the detriment of the public at large.[126]I agree with my noble and learned friends that for the reasons they have given the certified question in the Looseley case should be answered "No" and that the appeal should be dismissed.[127]In the case giving rise to the Attorney General's reference I am less clear that the police officers' conduct was such as to require the section 78 discretion to be exercised so as to exclude the evidence of the undercover police officers. I doubt whether the conduct of the police officers was out of the line of what might have been expected of many purchasers of contraband cigarettes. The inducements offered to the accused in order to persuade him to supply heroin do not seem to me to correspond with what would be necessary to cause the prosecution to be an affront to the public or to offend ordinary notions of fairness. This was, however, a matter for the discretion of the trial judge, and it may be that his value judgment was one that he was entitled to reach.[128]I respectfully agree with the answer proposed by Lord Hutton to the point of law referred by the Attorney General.

Cited in 46 later judgments

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