What is the common understanding of police entrapment?
Police entrapment occurs when a law enforcer such as a police constable causes a person to commit an offence with the intention of prosecution for that offence. (For example, posing, or hiring someone to pose as a street prostitute and waiting for a ‘kerb crawler’ to attempt to solicit for the services of the prostitute from their vehicle).
What constitutes Entrapment?
As understood in UK criminal law, for a person to fall foul of entrapment, a law enforcement agent would have induced a person to commit an offence that otherwise they would have had no intention to commit.
Taking the above prostitute example, an undercover agent posing as a street prostitute only engages in activity considered to be entrapment if they deliberately solicit or coerce the business of a passer-by (kerb crawler). If for example, the street prostitute makes no obvious attempt to solicit, and the unwitting customer makes it clear his intentions are to publicly solicit the business of the prostitute, in the eyes of the law i.e. a judge at trial can uphold that the behaviour observed was not manipulated by the undercover agent, rather more they were merely acting how they would have done with or without the police presence. The take home ethos behind entrapment is simply creating an opportunity for a crime to be committed is not entrapment.
Police entrapment and court proceedings
The issue of evidence gained from police entrapment activity in court cases is a hazy area in terms of how relevant it is in conviction; Sometimes, where criminal activity has been ‘encouraged’ or facilitated by a law enforcement officer, evidence derived may not ‘stand up in court’ when it is considered that the integrity of the legal system is in jeopardy due to such actions. Where it is deemed that the authorities involved in the committed crime should be disciplined for this reason, criminal proceedings in court can be ‘stayed’ (stopped).
Police and Criminal Evidence Act 1984
In relation to evidence gained from entrapment, courts hold the discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence from a trial on the grounds that if it were included, it would have an unfair, adverse effect on the proceedings. However through case law examples, it has been established that where there is doubt that evidence is relevant in terms of how it was obtained, the question needs to be asked, is it appropriate to bring the case at all? The ability to stay a case is testament to this.
Entrapment as a defence?
Entrapment cannot be used as a defence in court proceedings. This is because the act of entrapment does not take away the intent to commit a guilty act from the accused. In this sense the entrapment has served its purpose in that a prohibited act was observed, the guilty party arrested and the guilty intent supposedly not manipulated, just the circumstances surrounding the guilty act. It would be taken into account however as mentioned above, if the actions of the police or other government agents acted contrary to the integrity of the criminal justice system, in which sense it is not for a defence lawyer to use but for a judge to ascertain and act accordingly.
In some other jurisdictions outside the UK, entrapment can, however be used as a possible defence.