So you're walking down the street minding your own business when a friendly bloke comes up to you asks you if you want to buy a dozen cartons of Benson & Hedges for some ridiculously cheap price. You say 'yes please', hand over the cash and take the cigs - then your new best friend pulls out a pair of shiny hand-cuffs and reads you your rights. Have you got a defence? The short answer is 'no' - entrapment is not a defence to any criminal act but that does not mean a conviction must follow. Is this scenario far-fetched - in Williams v DPP  98 Cr App R 209 the police left a van loaded with cartons of cigarettes unattended with the doors part open - the resulting convictions were upheld as the police had not incited or pressurised anyone into acting dishonestly.
Some readers of this article will know all about test-purchase operations where under-cover officers will ask suspected street dealers for drugs - the officers will of course be 'wired for sound'. Other readers may be painfully aware of so-called 'participating informants' where a member of a group is also acting as a police informer. But the extent of under-cover police operations would surprise many. Rahman Ravelli solicitors alone have been involved in cases where an officer has pretended to be involved in the car-ringing business and even where an officer masqueraded as an under-cover contract killer for hire. In all these cases the operations must be properly authorised and that authorisation should be a primary area for enquiry following any arrests after such an operation.
In Texiera de Castro v Portugal (1998) 28 EHRR 101 the applicant, who had no previous convictions, complained that his right to a fair trial (Article 6 of the Convention) had been breached when 2 men came to his house and asked to buy heroin. He did not have any heroin but took them to another house to buy the drugs whereupon the 2 men arrested him. He was convicted but the European Court agreed with him that the officers had acted as agents provocateurs, he had in other words been incited into committing an offence he would not have otherwise have committed.
The House of Lords followed this approach in the leading case of R v Loosely; A.G.'s ref (No. 2 of 2000)  1 Cr. App. R 29. The Lords said that the proper approach to take where a state agent had lured a citizen into committing an offence was for the Court to stop the prosecution as an abuse of process. The Lords said that when a Court is considering the limits of acceptable police behaviour in a particular case a useful guide is to consider whether the police did no more than present the Defendant with an unexceptional opportunity to commit a crime. If the police officers went further than others might have done in a similar position then the police are to be regarded as artificially creating the crime.
So, in a test-purchase case the first consideration is to require the authorities for the operation and then to consider whether the officer has, for example, persistently badgered the suspect until he relented - if so then it maybe unfair to try him for the offence of supply. On the other hand if an officer has infiltrated a group of known criminals and has called in the arrests just prior to a bank-robbery then the level of participation of the officer with the group may be more justified - but the question still remains of incitement - who proposed the robbery in the first place?
It maybe that the balance of police behaviour does not support a submission that the offence was incited by the police - however just because a Defendant could have a fair trial does not mean it is fair to try him, i.e. if the police behaviour did not reach Texeira de Castro standards, i.e. of incitement, and so a Judge can't be persuaded that the Defendant cannot have a fair trial then he may still be persuaded to rule out the officer's evidence. For example where a known jewel handler offers stolen gems to an under-cover officer and the officer did not incite the offence, but it turns out that the arrest followed a culmination of months of over the top surveillance and unauthorised use of the under-cover officers. Then the argument would be that the Defendant's Article 8 rights (right to privacy) had been violated by an unlawful operation and though he could receive a fair trial it would not be fair to admit the evidence in the face of such serious violations; see R v Button  EWCA Crim 516, 4th March 2005.
It maybe that questions as to the lawfulness of a police operation depend upon the prosecution revealing to the Judge the suspicions which they held against the Defendant - this information the Crown my not want the defence to know and so a private Public Interest Immunity application takes place. The prosecution frequently fail to disclose even the category of material it wishes to keep secret and, as per last month's article, the leading case of R v H and C (where we represented H) underlines the fact that you can have a voice behind that closed door and you should demand to know at least what category of material is sought to be withheld so that you have an opportunity to address what little is revealed - those submissions may lead to greater disclosure which may in turn strengthen any application based on entrapment/Article 8.
Jonathan Lennon is a Barrister specialising in criminal defence and Prison Law at 23 Essex Street Chambers in London. He is co-editor of the Prison Law Reports.
Aziz Rahman is a Solicitor - Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.