define entrapment
Entrapment relates to State agents, usually but not always police officers, who induce a person to commit and offence that he would not have otherwise committed
when does entrapment typically arise ?
Typically arise out of investigations into consensual offences such as the sale of drugs due to the difficulty in law enforcement in this type of area
what are the three types of investigations ?
a) Controlled purchases – undercover agents arrange to purchase illicit materials
b) Test purchases – state agencies recruit civilians who attempt to purchase e.g. cigarettes in breach of relevant sales regulations
c) Controlled deliveries – law enforcement agencies intercept illicit materials and an undercover officer completes the delivery
What situations has case law distinguished between in relation to entrapment?
The courts have distinguished between situations where the agent provides an opportunity and where the agent actively incites the commission of a crime
what are the facts of the case R v Sang [1979]
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
The appeal failed.
is there a defence of entrapment in England ?
There is no defence of entrapment in English law.
Induced intent is still intent
why did the supreme court quash the conviction in Sherman v US (1958)?
The Supreme Court quashed the conviction observing that while undercover work was necessary, such work ‘manifestly… does not include the manufacturing of a crime’
what are the facts of the case Regina v Jones [2007]?
- He had written graffiti in train stations seeking girls between 8 and 13 for sex.
- A woman police officer pretended to be a twelve year old girl responding to the graffiti.
- The police were not guilty of entrapment with regards to an attempt to commit offences under the Sexual Offences Act 2003 s.8 where they posed as a 12-year-old girl to gather evidence against the offender, as the police had not incited or instigated the crime.
- The police had not instigated the offence, only provided the defendant with an opportunity to commit it (no entrapment), and his acts were more than merely preparatory.
How has entrapment applied in Irish case law to date?
Dental Board v O’Callaghan [1969]
- the prosecutor sent an agent to have a set of dentures repaired
Syon v Hewitt and McTiernan [2006]
- the prosecutor recruited a fourteen year old girl to purchase cigarettes.
The HC accepted, in both cases, that the prosecutors were acting to further a statutory responsibility imposed out of concern for the common good.
Such operations were accepted as a necessary means of conducting required investigation
In O’Callaghan the prosecutor had suspicions about the accused
In Syon it was a random operation – accepted that this as a necessary type of operation
what are the facts of the case The People (DPP) v Van Onzen and Loopmans [1996]
- The Garda had intercepted a mobile phone and continued the drug deal undercover
- The defendants brought the drugs into Irish water and were arrested
- They argued that they had been lured and entrapped
- The court held that the Garda had not done anything outside of the normal acts of purchasing drugs
- Held there was no entrapment
what are the facts of the case People (DPP) v Mills [2015]
- Undercover gardaí were engaged in an investigation into the sale and supply of drugs in a part of Drimnagh
- The operation had been authorised at Commissioner level and the gardaí had been trained in the conduct of such operations
- One of them approached people at random asking where he could buy cannabis
- A 16 year old made a call and the applicant arrived at the scene with a small bag of cannabis and sold it to the undercover agent – he also provided his number
The following day the garda rang looking for more - At the time the appellant was not known to the gardaí and had no criminal record
- He was convicted and appealed
- It was held – the garda actions were no more than and unexceptional opportunity to commit the crime – no incitement – he took advantage and it appears he would have behaved in such a manner if the opportunity had been offered by someone else
what is the test for entrapment ?
- to consider whether the police did no more that present the defendant with an unexceptional opportunity to commit the crime.
- in general, whether the police conduct preceding the commission of the offence was no more that might have been expected from others in the circumstances.
what are the facts of the case Teixeira de Castro v Portugal [1998]
- The defendant was convicted of a drug offence, having supplied two undercover agents with heroin, at their request.
- The Court accepted the need for undercover operations but observed a ‘right to a fair administration of justice nevertheless holds such a prominent place… that it cannot be sacrificed for the sake of expedience….the public interest cannot justify the use of evidence obtained as a result of police incitement’
when is entrapment likely to be considered
A is typically law abiding, not been a suspect , unknown to the police , np criminal record etc and only through the police undercover interaction does he proceed to be law breaking - more likely to be considered entrapment
what was held in the case of Vaselov v Russia
It was held that the law enforcement agency must be able to show that they had good reason for mounting the covert operation.
Concrete and objective evidence showing that the initial steps had been taken to commit the acts constituting the offence.
This information must be verifiable
