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The Hunter Games: an examination of private entrapment – part 3

This is the final 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, drawing on considerations explored in the posts on state, media and private entrapment, whether there are arguments for the extension of abuse of process arguments to cases reliant on evidence gathered by these self-styled ‘paedophile hunters’.

Should private entrapment constitute an abuse of process?

Support for the extension of the abuse of process doctrine has been growing in recent years. O’Floinn and Ormerod argue that “emphasis should, we suggest, be placed on considerations such as private investigations undermining the “integrity of the criminal justice system”, as well as those listed by Lord Nicholls (for example, whether the police presented the defendant with an “unexceptional opportunity”),rather than simply on an ex-post facto assessment of reliability.”[1]As noted by Dyer, the case-law on abuse of process has established numerable iterations as to what aspect of the police’s conduct constitutes an abuse of process: 

“the police’s conduct has been, variously: ‘so seriously improper as to bring the administration of justice into disrepute’; such as to amount to an ‘affront to the public conscience’; liable to damage "the integrity of the criminal justice system; or ‘deeply offensive to ordinary notions of fairness’” [2]

Several judicial statements focus on the importance of the State abusing its power. However, as discussed in Latif and Looseley, the abuse of process doctrine extends to any case in which the integrity of the criminal justice system, or ordinary notions of fairness are at stake.  In Saluja, the court stated that for non-state agents, the abuse of process doctrine would be available where the actions of the non-state entrappers were “so serious” as to compromise the court’s integrity. The effect on the integrity of the system is palpable and there is evidence to suggest that greater use of abuse of process applications is warranted. For example, in R v Hardwicke [2001] Crim. L.R. 220,  although the jury convicted the defendant, they gave the following note : ‘The jury would like to say that the circumstances surrounding the case have made it very difficult for us to reach a decision. Had we been allowed to take the extreme provocation into account we would have undoubtedly reached a different verdict.”

 I will now discuss several features of the cases brought using evidence gathered by vigilantes which demonstrate that they should be considered as an abuse of process.

a)      Nature of the investigation

As demonstrated in R v Sang [1980] A.C. 402 the law of England and Wales does not place overt emphasis on the surrounding circumstances of the gathering of evidence when considering whether a person has made a genuine choice to offend. However, the court will investigate the nature of the investigation where it is submitted that such an investigation has an adverse effect on the integrity of the criminal justice system or general notions of fairness. Although historically this has been focused on the propriety of the exercise of State power, it is evident that the court will consider the conduct of non-state agents. In Hardwicke, the Court of Appeal noted that the trial judge stated that he would look at whether the evidence had been gathered by “ improper, unlawful or morally reprehensible means.” Whilst the trial judge later indicated that the court would be reluctant to intervene unless the conduct of the entrappers was unlawful, it is submitted that the term “serious misconduct” in Saluja [2006] EWHC 2784 (Admin) can include conduct, which whilst lawful, is nevertheless so serious as to compromise the court’s integrity.

Examples of such conduct are as follows:

  1. The use of fake profiles which use photos of unknown women without their knowledge or consent.

  2. Persistent pressure on the accused by the vigilantes.

  3. The practice of confronting the accused and engaging in informal interviews.

  4. The process of recording and publishing these confrontations; some are live streamed.[3]

  5. The publication of chat logs between the accused and the vigilante

  6. The sharing of photos, videos and personal information about the accused.

Importantly, the refusal by the Court of Appeal to accept abuse of process arguments in private entrapment cases further legitimises these reprehensible practices and thus encourages further derogations from acceptable conduct in order to secure convictions. In addition, the use of oppressive and humiliating techniques only pushes potential offenders underground and encourages them to pursue more covert measures.

A criminal justice system which validates the live-streaming of confrontations between vigilantes and would-be defendants clearly does not maintain a high degree of integrity. Whilst justice needs to “be seen to be done”, these confrontations amount to little more than glorified bear-baiting. These methods, which are geared towards securing any conviction, thus substantially undermine the integrity of the criminal justice system.

I do not seek to criticise the quality of the evidence gathered by these vigilantes; it is evident that they are aware of the rules concerning admissibility of evidence. Equally, it is difficult to meaningfully criticise the lawfulness of their actions. In some videos, their acute knowledge of the law is entirely evident; for example, vigilantes rely on section 24A PACE 1984 to detain the targets at the confrontations. Rather, it is their methods, which are largely geared towards public humiliation as opposed to justice, combined with their lack of regulation and supervision that are “sufficiently gross” as to compromise the court’s integrity.

b)     Lack of authorisation and regulation

Police investigation of offences is subject to an extensive regime of legislative and regulatory control. Most criminal practitioners will be familiar with the Police and Criminal Evidence Act (1984) and the Regulation of Investigatory Powers Act (2000) (now replaced in part by the Investigatory Powers Act 2016) which place specific duties and responsibilities on the police in investigating offences. Vigilantes, despite being acutely aware of the terms of the law, are not subject to such provisions and, as such, engage in activities that bring disrepute upon the criminal justice system.  

There is no Code of Practice for private agent involvement in their operations. Therefore, there is no control or supervision about the legitimate boundaries of their activity unlike state agents whose involvement in such activity is strictly regulated. As noted in Moore, authorisation and supervision of the operation serve as a legitimate control mechanism of state entrapment. There is a therefore a clear and present danger that the lack of supervisory role gives rise to oppression, extortion, corruption and other types of misconduct which will inevitably encourage other non-state agents to overstep a legitimate boundary. Under the current position, the courts are sanctioning the admission of evidence that has not been obtained with the benefits of the statutory safeguards. The application of these safeguards should not depend upon who is conducting the investigation; they exist to make sure that the investigation itself is carried out properly and that evidence is reliable. 

c)      Intentions of the vigilantes

The intentions of the agents is relevant to the court’s determination as to whether their conduct constitutes an abuse of process. In Hardwicke, the court distinguished between “executive lawlessness” and “commercial lawlessness.” The latter refers to the aim of those who engage in media entrapment; as Sleight observes, media entrappers’ “primary incentive is to sell newspapers not to prevent crime.”[4] This difference in motivation may, to some extent, justify the differing treatment between these two forms of entrapment. As the executive’s aim is to prevent crime, it is seen as much more of an abuse of the system that they “create offences”. Whereas for the media, entrapment is merely the mechanism through which they achieve their primary objective: commercial success.  As Ho notes, "… where a journalist sets out to ‘entrap’ someone, the aim is … to get a newsworthy story to sell and not … to secure a criminal conviction. It is typically only after the story is published that the police enter the picture … [I]t is difficult to see how the role of the journalist undercuts the moral standing of the state to condemn the accused for the crime that he or she has committed."[5]Dyer argues that this distinction between state and media entrapment is without justification; I would recommend his article for an illuminating discussion on how media entrapment should be considered an abuse of process.


So what about private entrapment? It is evident that these vigilantes are motivated by securing the convictions of those they target online. For many of these individuals, they are a necessary substitute for the police; their efforts are thus focussed on gathering evidence that will secure convictions at trial. Similar to the police, the vigilantes utilise undercover methods to expose crimes which are committed secretly. Further, they intend for their targets to be prosecuted if they succumb to their efforts. There is therefore parity between the motivations of these private agents and the motivations of non-state agents.

The motivations of the vigilantes often differ from the State in some regards. As evidenced by the methods discussed earlier, their motivations extend beyond the mere conviction of the targets. The publication of identifying information, the chat logs and videos of the confrontation serve to further humiliate the targets as well as providing further notoriety for themselves. Also, as evidenced by the confrontation videos, some vigilantes will often get personal satisfaction out of the confrontation of the target; a system which is complicit in the public humiliation of these targets, motivated partly by the desire to convict but also by personal malice, cannot be said to have integrity.

d)     Implicit authorisation by the state

As made evident in Paulssen v The Queen, the extent to which the State authorises the behaviour of the non-state agent is relevant to abuse of process arguments.

Dyer argues that a stay should be granted where private individuals use entrapment techniques as detailed above. He argues that, by not prosecuting the entrapper, the state has “conveyed to the entrappers that they may continue to use such tactics with impunity – and has thus become involved in their misconduct.”

The State’s involvement is that of the “accessory after the fact”; the failure to take any action thus results in the State implicitly authorising the vigilante’s act. Further, the state’s failure to adequately respond to the vigilantes means that in any future actions by the entrapper, the state can be considered as an “accessory before the fact”; namely, by failing to take any action, it has sent a clear message to the entrapper that they may continue to act in this way.

It is important to note that some police stations have taken steps to try and dissuade such vigilante groups from their activities. For example, some will send the vigilantes “cease and desist” letters.[6] These are ineffective as the vigilantes are careful not to break any laws in their efforts; therefore, they cannot cease and desist from what are ostensibly legal acts. Further, it is evident that they are ineffective.

It is submitted that ordering a stay due to abuse of process is the appropriate mechanism to address this issue. Such an order does not concern the legality of the vigilantes’ actions, but rather the impact that their actions have on the integrity of the criminal justice system. Once such stays are commonplace, vigilantes will receive a clear message that the State, more specifically the court, does not continue to sanction this behaviour. 

e)      Lack of intelligence: the random “virtue testing” of the public

It is trite law that the police should not create offences for the public at large. For example, they should not simply leave a wallet on a bench to see who might steal it. Any case of state entrapment should typically be predicated on intelligence; that is, the police should have evidence that their target has previously committed criminal acts, is in the process of committing criminal acts or is going to commit criminal acts.

However, as noted by Ho, when entrappers target the public at large, in that their aim is securing a conviction against anyone, they are “virtue testing”. These private vigilantes typically operate without intelligence; they will often enter adult chatrooms and proceed to target anyone who interacts with their online profile. Dworkin argues that state entrapment should only be embarked upon where there is “probable cause” or “reasonable suspicion” that the target is already engaged or is intending to engage in activity of a similar nature.[7] This probable cause minimises the risk of actual entrapment i.e. the risk of causing the target to engage in criminal activity that they would have otherwise stayed away from.

 As noted by Hofmeyr, in order to answer the question “would the accused have committed the crime without the involvement of the agent provocateur?”, it is “necessary to consider the likelihood of the accused committing the crime without the involvement of the agent provocateur, and to do that requires an assessment of all there is to know about the character and mental state of the accused.”[8] The pre-disposition of the target does not affect their culpability, but rather impacts on the propriety of the conduct of the entrapper. For example, in Moon, Rix LJ found it particularly telling that the state conceded the defendant had, at all times, been a drug addict only, and not a dealer:[9]

“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.” 

In terms of Moore,[10] it is submitted that this case was decided wrongly. The defendant in that case was supplied with cheap goods by police officers. She was not a target of the undercover operation nor was she suspected of any relevant offending. She was effectively groomed into a situation of dependence on these cheap goods, she was poor and vulnerable, and it was in this context that one of the undercover officers had first asked her about where he could obtain cocaine. The court did not order a stay as they considered that the undercover officer did no more than provide her with an opportunity to commit the offence. This decision wholly ignores the injustice in testing the virtue of a member of the public who was not suspected of involvement in any criminal activity.    

In Looseley,[11] the court commented that:

“The tactics should not be applied in a random fashion, and used for wholesale ‘virtue-testing’, without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play.”

This excerpt implies that random virtue testing should not be embarked upon, but may be justifiable where there is a good reason for using it. Some would argue that there are aspects about paedophilia which justify the use of this random approach; namely, the secretive nature of online grooming and the public interest in securing convictions against potential sex offenders. It is noted that online grooming is committed in an entirely covert manner using modern methods of communication; often, the person engaged in the activity is able to conceal their identity until the young person is in their presence. However, the secretive nature of a crime is not enough to justify virtue testing of this variety. The same justification could equally be levelled at the wallet on the park bench scenario. Similarly, the public interest in securing convictions is applicable to each and every crime; the nature of this offence should not legitimise an approach which continues to erode the integrity of the criminal justice system.


With cuts to police funding set to continue, the criminal justice system needs to consider whether it wishes to delegate large parts of policing to these vigilante groups. For the reasons detailed in this series, it is submitted that the use of the evidence gathered by these groups should constitute an abuse of process. Whilst section 78 was dealt with in a fairly cursory manner, due to its secondary place in the entrapment case law, there is no suggestion that the arguments discussed in this article could not apply equally in such an application.

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

[1]O’Floinn and Ormerod, “Social networking material as criminal evidence” Crim. L.R.  2012, 7, 486-512.

[2] Dyer, “The problem of media entrapment”, Crim L.R. 2015, 5, 311-331.

[4]D. Sleight, "The law regarding entrapment" (2010) The Law Society Gazette, [Accessed February 28th, 2017].

[5]Ho, "State Entrapment" (2010) 31(1) Legal Studies 71

[7]G. Dworkin, "The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime" (1985) 4(1) Law and Philosophy 17

[8]Hofmeyr, "The Problem of Private Entrapment" [2006] Crim. L.R. 319.

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

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

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

Posted by 5PB on 30 March 2017 at 17:36