Entrapment usually relates to criminal law and is a practice used by the authorities to induce an individual to commit a crime.
Police entrapment would involve a police officer entices an individual to commit a criminal offence with the intention of bringing a prosecution for the offence. This offence is one that they would not ordinarily commit. Although the practice is often discouraged, it is sometimes necessary in undercover operations where it is used as an investigative tool to pursue criminal activity which would otherwise be very difficult to identify and successfully prosecute.
In many areas it can be used as a possible defence against any liability in terms of criminal proceedings.
Depending on the nature of the law in the particular area, the prosecution will be expected to prove beyond reasonable doubt that the defendant did not participate in any form of entrapment. In some instances it is the defendant who may be asked to prove that entrapment was used by establishing what is known as an affirmative defence.
In the UK, a grant of stay can be awarded if the conduct of the state was such that the administration of justice was questionable. When deciding whether or not to grant a stay, the courts will take into consideration whether the police acted in such a way that provided an unexceptional opportunity for the defendant to participate in criminal activity.
When deciding whether proceedings should be stayed, there are several factors that should be taken into consideration:
- Firstly, there is a question of whether the police acted in good faith
- If there was sufficient grounds to suspect the defendant of participating in criminal activity
- If the police believed that the crime was prevalent in the place where they conducted their investigations
- If specific techniques for the investigation were required and necessary because the crime would otherwise be difficult to detect
- The vulnerability of the defendant and their individual circumstances
The particular details of the offence
Operations where entrapment is commonly used are fraught with difficulty and concerns over whether entrapment should be used at all. In UK criminal law, the way in which evidence from entrapment is used during criminal proceedings is a particularly grey area especially when assessing its relevance in relation to a conviction.
In instances where criminal activity has been actively promoted or encouraged, evidence from this practice may not be strong enough to present in a court of law. This is because the entire integrity of the system is in question because of the actions taken to obtain the evidence.
Where it can be established that law enforcement were involved in committing the crime, any criminal proceedings within a court can be stopped.
Entrapment and the Police and Criminal Evidence Act 1984
When the practice of entrapment is implemented, evidence may be obtained by the Police. However, under Section 78 of the Police and Criminal Evidence Act 1984, the court can exercise their own discretion as to whether to include or dismiss evidence in a criminal trial.
This decision can be taken if it is believed that were the evidence to be presented in the trial it would affect the proceedings in an adverse or unfair manner. Through various case law examples, it has been demonstrated that evidence gathered during entrapment could be questionable because of the way in which it was obtained.
In this instance, the courts will seek to determine whether it is viable to bring a case at all.
Establishing a Defence
During court proceedings, entrapment is not an acceptable defence. The reason for this is because the practice of entrapment does not remove any intention to commit criminal activity from the defendant. In this situation, entrapment has been used because the illegal act was committed, the intention to commit the criminal activity was there and the guilty party arrested for the offence.
Consideration will be given to the actions of the police or agency involved in the entrapment and whether they conducted themselves in such a way which brought the integrity of the criminal justice system into question. In this instance, it would be for a judge to decide whether this was the case and then take appropriate action.
There is a very fine line between deciding whether conduct has been appropriate and what activity would be considered inadmissible during criminal proceedings. This is a particularly contentious area and it will always depend on the specific details of each individual case.
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This article was written by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.