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The Hunter Games: an examination of private entrapment – part 2

This is the second post in a series of posts which consider whether cases which rely on evidence gathered by vigilante groups should be considered an abuse of process. In this post, I consider the case law on media entrapment and private entrapment.

Media entrapment

Media entrapment refers to the entrapment by members of the media, typically journalists, of other members of the public. In R v Shannon [2001] 1 WLR 51, a News of the World journalist procured evidence of a drug offence against the defendant. The defendant applied to exclude the evidence under section 78 PACE as he claimed it was evidence that had been unfairly obtained. Potter LJ noted that:

“in so far as abuse of process considerations might be relevant, there was no suggestion of criticism of the part played by the police or Crown Prosecution Service, the organs of the state responsible for gathering and presenting the evidence and of instituting proceedings.”

Potter LJ concluded that if the unfairness complained of was no more than:

“a visceral reaction that it is in principle unfair as a matter of policy, or wrong as a matter of law, for a person to be prosecuted for a crime which he would not have committed without the incitement or encouragement of others, then it is not itself sufficient, unless the behaviour of the police (or someone acting on behalf of or in league with the police) and/or the prosecuting authority has been such as to justify a stay on grounds of abuse of process.”

In R v Hardwicke [2001] Crim LR 220 News of the World journalists posed as wealthy Arabs in order to entrap the appellant into supplying drugs. In considering an order to grant a stay as an abuse of process and section 78 arguments the Court of Appeal noted that:

“what the court seeks not to condone is ‘malpractice by law enforcement agencies’ which ‘would undermine public confidence in the criminal justice system and bring it into disrepute’. Obviously that is not a consideration which applies with anything like the same force when the investigator allegedly guilty of malpractice is outside the criminal justice system altogether.”

The trial judge noted that his duty was “to examine the circumstances of this particular case and to look at what these particular journalists did in order to reveal the criminal behaviour of these particular defendants.”

In terms of the conduct of the journalists, Kennedy LJ noted the following statement of the trial judge:

“Of course, in my examination of what has happened in this particular case, if I were to conclude that improper, unlawful or morally reprehensible means had been used in order to trap these defendants, then I should be obliged to condemn such behaviour. However, I do not reach any such conclusion in this case….

The way in which such investigations are pursued, albeit they may rightly or wrongly be described by some as distasteful, is not in my view judicially to be condemned where it is not unlawful. Thus, when I examine the facts of this case and, in particular, the acts of these particular journalists on the 2nd and 3rd September 1998, and set those against the offences with which the defendants are in consequence charged before this court, I readily conclude, borrowing and adapting the words of Lord Steyn in the case of R v Latif once more, the conduct of Mr Mahmood and his colleagues was not so unworthy or shameful that it would be an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour, if any has been established, by these journalists was venial compared to that of the defendants.”

Ultimately, the Court rejected the application for a stay because it considered that the malpractice by law enforcement agencies, which would undermine public confidence in the criminal justice system, was not a consideration when a private media agent operates outside the criminal justice system altogether. The court reasoned that they should not treat commercial lawlessness and executive lawlessness in the same way.

In R v Marriner [2002] EWCA Crim 2855 a BBC journalist used covert equipment when making a documentary on Chelsea football supporter violence. As part of the operation, the journalists had portrayed themselves as interested in football violence and racist and right wing behaviour; at one point, they purchased cocaine and then retired to a toilet to “pretend” to make use of it. At first instance, the defendants’ applications under section 78 and for a stay of proceedings was unsuccessful. On appeal, the court upheld the conviction and held that:

“The purchase of cocaine (which was then handed over to the programme producer) was — however strictly illegal — capable of explanation as a part of the journalistic operation. The undoubted flattery, wheedling, falsehoods and the making of apparent offers of legitimate and illegitimate business were also part of the journalistic operation.”

Therefore, despite both the illegality and immorality of the methods employed by the journalists, the court considered that these were merely part of the journalistic operation and were thus seemingly reluctant to consider any of their acts had constituted an abuse of process.

In Saluja (Council for the Regulation of Health Care Professionals v General Medical Council and Saluja [2006] EWHC 2784 (Admin); [2007] 1 W.L.R. 3094), a journalist visited a doctor’s surgery posing as a patient. The journalist pressed a doctor with requests for a medical certificate for time off work. She suggested that he should supply the certificate, despite the absence of her ill-health, in return for money. The court maintained that there was a distinction between entrapment by state agents and entrapment by non-state agents. Goldring J stated that the present case:

"… is wholly different [from state entrapment]. By definition no question arises in such a case of the state seeking to rely on evidence which, by its own misuse of power, it has effectively created."

However, the court did leave open the possibility of a stay being ordered where there has been entrapment by non-state agents. Goldring J explained that stay could be granted where there was:

“sufficiently gross misconduct that it would be an abuse of the court's process (and a breach of article 6) for the state to seek to rely on the resulting evidence” ; or

“so serious would the conduct of the non-state agent have to be that reliance upon it in the court's proceedings would compromise the court's integrity.”

The court did point out, however, that there had been no reported case, domestic or European, in which “commercial lawlessness” had founded a successful application for a stay.

Summary of media entrapment

Throughout the case law, the court emphasises there is a fundamental difference between state entrapment and media entrapment; the court refers to this as the difference between “executive lawlessness” and “commercial lawlessness”. Notably, they consider that abuse of process arguments are relevant to state entrapment because it is concerned with the State’s abuse of power. Therefore, actions by the media, which do not have the same power and thus accountability of the executive, do not constitute an abuse of process. However, there are some key points to note that are of some relevance to private entrapment:

There is a distinction between “executive lawlessness” and “commercial lawlessness” (Hardwicke)

The court will look at the behaviour of non-state agents and consider whether it “improper, unlawful or morally reprehensible” However, the court seemed reluctant to grant a stay unless the entrapper’s behaviour was unlawful.(Hardwicke)

The court appears to carry out a balancing exercise between the conduct of the non-state agents and the conduct of the entrapped. (Hardwicke)

The courts consider that members of the media, namely journalists, are able to pursue unreasonable and even illegal methods because of their journalistic endeavours (Marriner and Frain)

The court considers that private entrapment, as an argument for abuse of process, is possible but rare (Saluja)

Private entrapment would be available where the actions of the non-state agents were “sufficiently gross” or “so serious” as to compromise the court’s integrity. (Saluja)

Private entrapment

The third category of entrapment is referred to as private entrapment; vigilante groups, such as so-called “paedophile hunters.” The case-law on private entrapment is extremely limited.

In Schenk v Switzerland [1991] 13 E.H.R.R. 242 a taped conversation between the defendant and a hired hitman about the planned murder of the defendant’s wife was handed over to the police. The ECtHR considered whether the admissibility of such evidence breached the defendant’s rights under article 6. The court concluded that whilst article 6 guaranteed the defendant a right to a fair trial, it did not lay down any rules on the admissibility of “such evidence”; accordingly, the admissibility of evidence was a matter for regulation under national law.

In Paulssen v The Queen [2003] EWCA Crim 3109 the accused, pending trial for conspiracy to defraud, solicited his fellow inmate to murder a witness. The defendant later solicited an undercover officer to kill the witness. The court held that:

“I am quite satisfied that [the inmate] was not, nor could he have been, acting on behalf of the state when he had conversations with Mr Paulssen. Therefore whatever [the inmate] did do or may have done to “entrap” Mr Paulssen was not done with any authority of the state.”

The court concluded that an argument alleging abuse of process could not apply to the evidence of the inmate as he was acting on his own initiative without the involvement of the state.

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


Posted by 5PB on 24 March 2017 at 09:24