The Author


About this blog

Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.

The Hunter Games: an examination of private entrapment

Seemingly disillusioned by the police’s ability to apprehend paedophiles, vigilantes (often referred to as “paedophile hunters”) adopt false online profiles to lure potential sex offenders into committing criminal offences.[1] Increasingly, police are relying on evidence obtained by these vigilante groups in order to secure convictions against defendants. The continued reliance upon, and thus the state endorsement of, such activities raises serious issues of public policy; namely, the methods employed by these groups,  their motivations, the targeting of individuals without prior intelligence and the lack of regulation of or authorisation for such groups. In light of these concerns, the question arises as to whether counsel can rely on section 78 or abuse of process arguments in order to defend a case brought using such evidence. In this series, I will provide an analysis of the law on state entrapment, media entrapment and private entrapment; I will conclude by considering whether any of these considerations found therein are of use to abuse of process arguments in cases involving these vigilante groups. Ultimately, it will be concluded that private entrapment of this variety should be treated as an abuse of process.

Rejection of entrapment as a substantive defence

In R v Sang,[2]the House of Lords considered whether entrapment could be a substantive defence in the law of England and Wales. The court rejected the argument that entrapment in and of itself would form the basis of a substantive defence; however, they did consider that it could be taken into account in mitigation of sentence. Importantly, the court reasoned that no defence of entrapment was available because the entrapped defendant was still a culpable defendant:[3]

“The fact that the criminal conduct was (upon the assumptions made) incited by an "agent provocateur" did not, as a matter of law, diminish its criminality[4] or weaken the probative value of the evidence.”

As noted by Squires, this rejection of the culpability-based reasoning reflects a wider principle of criminal law; namely, that in determining whether a person has made a genuine choice to offend, the law generally excludes any evidence of the “wider social context in which crimes are committed.”[5] Therefore, when considering arguments for the availability of private entrapment as a defence, it is important to disregard arguments about the impact on the culpability of the defendant.

State entrapment

Rejection of the use of section 78 as the primary remedy

The application of section 78 Police and Criminal Evidence Act 1984, which had not come into force prior to Sang, was considered in R v Smurthwaite and Gill.[6] In that case, the appellants had been convicted of soliciting undercover officers posing as hitmen to kill their spouses. The Court of Appeal held that section 78 overruled Sang and would allow the court to exclude evidence obtained by entrapment if its inclusion would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. Lord Taylor CJ argued that the term “fairness of the proceedings” was not limited to the fairness of the accused’s trial but extended to the “fairness to the public.”

In R v Chalkley,[7] that court held that the words “the circumstances in which the evidence was obtained” in s 78 did not allow the court to exclude evidence “as a mark of disapproval of the way in which it had been obtained.” Therefore, the court restored the common law position of Sang and held that:

"… save in the case of admissions and confessions and generally as to evidence obtained from the accused after the commission of the offence, there is no discretion to exclude evidence unless its quality was or may have been affected by the way in which it was obtained."

In R v Looseley[8] the court held that section 78 was not the most appropriate remedy to deal with cases of entrapment. Lord Nicholls noted that arguments under section 78 are focused on the way in which the evidence had been obtained. However, he argued that entrapment arguments are more concerned with the accused claiming that, because their act was committed as the result of an abuse of state power, they should not be tried at all. The court thus concluded that the more appropriate remedy was a stay of proceedings based on an abuse of process:

““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.”

Abuse of process

The case of R v Bennett,[9] although not an entrapment case, is often cited as being responsible for the rapid growth of the abuse of process doctrine. In that case, the British Police bypassed extradition procedures and worked with South African police to arrest and forcibly return the appellant to the UK. The court stayed the resulting prosecution with Lord Griffiths explaining that:

"… the judiciary [has] … a responsibility … to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law."

The court extended the Bennett principle to entrapment cases in R v Latif and Shahzad.[10]Shahzad, a supplier in Pakistan, delivered 20 kilograms of heroin to an informer. The drugs were then brought to England by a customs officer who had no licence to import them. Shahzad and Latif then arranged with the informer to collect the drugs from him and to pay for them in London. When they sought to do so they were arrested. The court, whilst recognising that there was no substantive defence of entrapment held that proceedings should nevertheless be stayed “where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.”

Therefore, the court considered that the abuse of process doctrine was not solely limited to cases of executive lawlessness but was extended to cover any case in which the court viewed that the integrity of the criminal justice system was at stake. However, the court refused a stay in that case because they considered that the conduct by state officials was “not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.”

In Looseley, the court emphasised that entrapment was not concerned with the culpability of the defendant but rather the propriety of there being a conviction at all having regard to the state’s involvement in the circumstances of the offence. The court explained that: 

“… when ordering a stay … the court is not seeking to exercise disciplinary powers over the police … the objection to criminal proceedings … lies much deeper … Entrapment goes to the propriety of there being a prosecution at all … having regard to the state's involvement in the circumstances in which [the offence] was committed.”

 The court held that abuse of process should only be used in state entrapment cases where the defendant is presented with an “exceptional opportunity”. The court explained that:

 “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.”

Lord Hoffman considered some circumstances where state-agent behaviour would compromise the integrity of the judicial system. Those circumstances included: 

  1. the distinction between causing an offence and providing the opportunity for it being committed;

  2. the distinction between obtaining evidence in relation to a crime which a person is about to commit or on which he is engaged and tempting a person into committing a crime; and

  3. the degree of supervision over the officer involved.

    Lord Hutton, cited with support, the dissenting judgment of McHugh J in the High Court of Australia in Ridgeway v The Queen,[11] which set out the following factors for consideration: 

  1. Whether conduct of the law enforcement authorities induced the offence.

  2. Whether the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence

  3. Whether the accused had the intention of committing the offence or a similar offence if an opportunity arose.

  4. Whether there was persistent importuning, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.” 

    R v Moon[12] is the only entrapment case decided since Looseley where the court has reversed the decision of a trial judge and quashed the defendant’s conviction on the ground that a stay should have been ordered. In that case, the appellant was a heroin addict who had been persuaded by an undercover police officer to supply her with a small amount of heroin and was thus charged with possession with intent to supply. The court held that:

“There was no evidence, save for this one single act of supply, to suggest that the appellant would have been prepared to supply any would-be purchaser. It is not a case of mere opportunity. It is not a case of: if not a deal with Jackie, then a deal with any other customer. Moreover, there was lack of proper authorisation. ..There was, moreover, a breach of the limited instructions… which had been given to [the undercover officer]. Furthermore, there was no predisposition to deal. There was no antecedent record which could be said to lie against the appellant or her evidence. On the contrary, both these factors operated in favour of the appellant…

Thus whether the matter is looked through the lens of the proper safeguards of authorisation, or through the lens of the appellant's absence of predisposition or antecedents, or through the lens of the actual nature of the police activities in relation to this appellant, the conclusion to which we are driven is that this appellant was lured into crime or was entrapped, and that it was a case of causing crime rather than merely providing an opportunity for it, and ultimately that it would be unfair for the State to prosecute her for this offending…”

In R v Moore,[13] Rix LJ found that the defendant, as in Loosely and Moon, was not predisposed to offend. However, the court considered that the defendants in Loosely and Moon were “simply lured into a single supply, and only after some persuasion.” However, Ms Mooreneeded no persuasion, but on the contrary seemed to take to the multiple supply of cocaine like a duck to water."

Whilst the defendant lacked the predisposition, this was not sufficient in and of itself to ground a stay; that is, the police conduct had not been so “seriously improper” to warrant a stay. Rix L.J. cited an article by Professor Ormerod[14] in which he identified five factors of particular relevance to applications to stay based on alleged entrapment:

  1. reasonable suspicion of criminal activity as a legitimate trigger for the police operation;

  2. authorisation and supervision of the operation as a legitimate control mechanism;

  3.  necessity and proportionality of the means employed to police particular types of offence;

  4. the concepts of the ‘unexceptional opportunity’ and causation; and

  5. authentication of the evidence.

Summary of State entrapment

Whilst there is no substantive defence for entrapment, the case law demonstrates a willingness by the courts to consider arguments of state entrapment primarily under the abuse of process doctrine. The nature of state entrapment constitutes the abuse; namely, that the State has abused its power to create offences. The following points are of notes:

  1. Abuse of process if the primary remedy for state entrapment; section 78 arguments, however, may still have a role to play (Looseley)

  2. State entrapment is relevant to abuse of process arguments where the entrappers’ conduct impacts on the “integrity of the criminal justice system”; is “so seriously improper as to bring the administration of justice into disrepute”; such as to amount to an “affront to the public conscience” or “deeply offensive to ordinary notions of fairness.”(Latifand Looseley)

  3. The court considers that an appropriate yardstick is whether the State has provided the defendant with an “unexceptional opportunity”. (Looseley)

  4. Authorisation and supervision of the entrappers is a relevant consideration (Looseley)

  5. The predisposition of the defendant appears to be of relevance. (Moon and Moore)


By Brad Lawlor who is currently undergoing pupillage at 5pb. 

 [1] A well-known vigilante group is “Dark Justice” ( Last accessed 08/03/2016)

[2] R v Sang [1980] A.C. 402; [1979] 69 Cr. App. R. 282.

[3] Lord Scarman at p 455.

[4] Emphasis added.

[5] Squires, “The Problem with Entrapment” (2006) 26 (2) Oxford Journal of Legal Studies 351, 372.

[6] R v Smurthwaite and Gill [1994] 1 All E.R. 898.

[7] R v Chalkley [1998] 1 Q.B. 848.

[8] R v Looseley [2001] UKHL 53; [2001] 1 W.L.R. 2060.

[9] Horseferry Road Magistrate’s Court, Ex p. Bennett [1994] 1 A.C. 42; [1993] 3 W.L.R. 90.

[10] R v Latif and Shahzad [1996] 1 W.L.R. 104.

[11] Ridgeway v The Queen 184 CLR 19, 92.

[12] R v Moon [2004] EWCA Crim 2872.

[13] R v Moore [2013] EWCA Crim 85.

[14]Ormerod, “Recent Developments in Entrapment”, [2006] Covert Policing Review.


Posted by 5PB on 15 March 2017 at 17:42