S78 and 76 Pace

“With regards to evidence obtained by entrapment and undercover operations, critically discuss the relationship between judicial discretion and the power to stay proceedings as an abuse of power”

This essay will critically examine entrapment in the light of judicial discretion and the courts power to stay proceedings. It shall also critically discuss the relationship between the two. The increasing use of entrapment within criminal law may be viewed as part of a global trend in investigations ranging from coercion to deception. Entrapment in itself is not a legal term of art, although in relation to its dictionary meaning it is merely to “catch”, “ensnare” “entangle” and to “trap”. However, in its widest occurrence with the law it is often described as “when an agent of the state, usually a law enforcement officer lures/ causes someone to commit an offence so that he may be prosecuted for it”. The term itself encompasses a wide range of proactive investigatory techniques ranging from “sting” operations to issues of “agent provocateurs” and even within its narrowest sense-“test purchases”-such situations could include circumstances where minors have been sold alcohol without full identification. Nevertheless, it has been illustrated through various case law that; deception is at the core of the doctrine of entrapment.
The rationale behind the doctrine of entrapment is two-folds. Firstly, it illustrates that “every court has an inherent power and duty to prevent abuse of its process...” in which practically the doctrine of entrapment works “to prevent the abuse of power”. Thus, fundamentally, the courts are upholding the rule of law. It is a vital role of the courts to ensure that the citizens of the state are not oppressed; it is the role of the courts to stand between the state and its citizens to make sure this does not happen. This is dearly seen in situations involving drugs-because within the drugs trade it is portrayed as a vicious circle (those who deal the drugs then influence those who take the drugs to commit offences) therefore the only way any information could be gathered would be through entrapment, however there are limits within the doctrine itself as seen in the case of Looseley/AG Ref. Evidently the court have to make sure that they balance out the fairness of the public interest and the fairness of the individual. Secondly, and an equally prominent rationale is the integrity principle in which a prosecution based on entrapment should be haltered in order to “protect the integrity of the criminal justice system” as to not violate the rule of law, because it is stipulated as a principle of consistency and it would be inconsistent for the courts, as guardians of human rights and the rule of law, to act on evidence obtained by methods which violate such rights.
Entrapment within English law is seen to have no substantive defence as stipulated in the case of R v Sang. However, it is only seen to be a mitigating factor and no more- as Lord Diplock illustrated that “although many crimes are committed by one person at the instigation of another, whether it is a police officer; this can not affect the guilt of the principal offender”. The second part of the decision in Sang has now been reversed by section 78 PACE 1984. Now the court has the power to exclude evidence if the court considers its admission would have an adverse effect on the fairness of the proceedings- and that the court ought not to admit it.
In order to critically analyze the relationship between judicial discretion (S78 PACE) and stay of proceedings within entrapment, we will have to consider the conjoined appeals of Loosely and Attorney Generals Reference, No 3 of (2000) which have both been explicit about the entrapment doctrine and its sufficient remedies. Although each case stands on its own facts, both cases exemplify the rationale as to why it was considered differently- giving attention to the aspect of it being a positive or a negative outcome.
In the case of Looseley the defendant appealed against his conviction of supplying Class A substance to an undercover officer- “rob”. This was all part of an undercover police operation set up after police concern about the trade of drugs from a public house. “Rob” had been given the defendants name by someone at the pub as a potential source of supply. The trial judge then refused to stay the prosecution as an abuse of process or to exclude the evidence of “Rob” under s78 of PACE 1984. The decision was later dismissed by the House of Lords on the grounds that rob had not instigated or enticed Looseley into supplying him with the substance and that Rob had acted lawfully within his powers- as there were reasonable grounds to suspect that the public house was a “focal point of trade”. This case therefore, also emphasised that although it was entrapment- it was seen to be reasonable.
Contrasted with the Attorney Generals Reference, No3 of (2000)- here the defendant had been charged with supplying a Class A drug. The trial judge stayed the proceedings as an abuse of process as it was discovered that the undercover police officer who was supplied with the heroin had offered the defendant cheap cigarettes as an inducement. The officers persuaded the defendant on several occasions to supply him with some heroin even though there was evidence that the defendant was “not really into it”- the defendant however, did it as a “favour for a favour”. In reaching this decision the judge applied the European ruling in Teixeira de Castro v Portugal (1999). In relation to this case, there had been no reasonable ground to suspect that the defendant carried out any “dealings”, nor was he illustrated as being someone who would be involved in such matters. But it was simply that the officers did instigate it so much so that he committed the offence. They offered him inducements that would not normally be associated with the commission of such an offence. This case thus illustrates entrapment in an instance where it would be deemed to be negative/outrageous and unreasonable.
As seen in the case of Looseley their lordships agreed that the stay of proceedings for an abuse of process was the only appropriate remedy on a statement of egregious entrapment, though it was added that S78 might still have a role to play in cases where tainted evidence could be excluded from the trial without necessarily undermining the prosecution. More over a clear distinction was made between Looseley’s willing to supply heroin to undercover officers who had behaved like ordinary “customers” and the blandishments faced in AG REF. The courts therefore, stayed the proceedings in the latter case due to the distinguishing factor that the difference between “luring” a defendant and merely offering him and “opportunity” is not by focusing on the extent of freedom of choice they exercised- but by examining the nature of the inducement put before them- as reiterated in (Nottingham City Council v Amin). In these types of case appropriate standards of police behaviour are more problematic and require a sharper focus on the nature of the police conduct. The former was deemed unexceptional undercover work aimed at catching criminals (Looseley), whereas the latter (AG REF) was too far into testing the susceptibility of ordinary citizens.
Problematically, the "unexceptional opportunity" principle in Looseley can be securely grounded that the law of evidence aims to promote the legitimacy of verdicts. The evidence secured through the instigation of an offence may be wholly reliable in proving that the defendant in fact committed the offence. However, the promotion of a crime that would not otherwise take place at all strikes at the core, the reason for the existence of criminal law. A guilty verdict in such a case cannot function as an expressive message that the values of the criminal law are to be respected if the sole reason for the occurrence of the offence is that it was procured by state officials whose duty is to uphold the law. In this way the state forfeits its moral authority to call for the imposition of blame and punishment of the defendant. It is right therefore that the prosecution should be prevented from taking advantage of evidence obtained in this way.
Although we have now discussed the two leading conjoined cases on entrapment, we have now a clear idea about the remedies available for entrapment. (Judicial discretion under S78 PACE & Stay of proceedings). Before analyzing the two we must first look at the difference between the two remedies.
It has been firmly established that evidence obtained in undercover police operations can be excluded under section 78 PACE if the circumstances warrant it, to exclude evidence that if admitted would affect the fairness of the proceedings to an unacceptable degree. The provision ensures that it covers the unfair use of evidence at trial and the unfair treatment of the accused in the obtaining of evidence; where it may pose a risk of impairing the moral authority of the verdict.

It is beyond controversy that one of the objects of criminal justice is to secure rectitude of decision (the right answer) and a criminal trial. So one way in which the fairness of the proceedings can be adversely affected is by inviting the jury to convict on the basis of unreliable evidence. This was a factor seen in the case of Looseley/AG ref -that the scope of S78 was wider than previously illustrated in R v Sang and thus it was assumed that S78 is wide enough to take into account matters that go far beyond the mere reliability of evidence.

Nonetheless, prior to the evolution of S78 of the police and criminal evidence act 1984 the position on law was very different. It had been noted in the case of R v Leatham- “no matters how you get it, you can steal it even and it would be admissible in evidence.” Thus the circumstances in which evidence was obtained casted no doubts on the overall effect of the trial as well as the reliability of such a trial-.This interpretation corresponds with the natural meaning of the words used in s.78, and is admitted to be a ambiguous.
Also prior to the case of Sang-. Evidence could be excluded as a matter of discretion- on the ground that entrapment would be inconsistent; it would have the effect of admitting the defence indirectly and thus give the judge the power to disregard at his or her discretion the rule that the defence is not directly available. This was said to be founded on the judge's duty to secure a fair trial for the accused by preventing unfair use of evidence at trial.- rationalised on the basis that it aimed to protect the accused's privilege against self-incrimination.
In the 1980s a number of landmark cases relating to confession evidence- R v Mason, R v Conale saw the courts moving more towards utilising s78 in addressing breaches of police investigation. It was then realised that s78 could provide useful for securing the exclusion of improperly obtained evidence.
The leading case in this area is now R v Smurthwaite where the court provided a non-exhaustive list of factors which may be considered by a court in deciding whether to exercise its exclusionary discretion. For instance how was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? This is quite problematic in itself because its quite uncertain as to how much weight is to be attached to this factor. Secondly, ‘what was the nature of any entrapment?’ This implies that some types may be more acceptable than others. Again, however, no guidance is provided on this vital issue. And thirdly how active or how passive the officers role was in obtaining the evidence?. This suggests that the more active the role was the more justifiable the exclusion will be. However one may criticise this as no guidelines are provided on the question of what may constitute a passive role.

Within the case of smurthwaite the COA though holding on the facts that there was no entrapment clearly took the view that S78 had widened the judicial discretion to exclude prosecution evidence and that there might be cases where evidence obtained by entrapment should be excluded. One can significantly see why for the most part judges will not exclude evidence improperly obtained and this is because of the need for fairness to the proceedings, which can be associated with fairness to the public.

More recently, however, the Court of Appeal would appear to have embraced a much narrower approach to discretionary exclusion. In R v Shannon- Court of Appeal held that the judge had ‘found, rightly in our view, that the evidence fell short of establishing actual incitement or instigation of the offences concerned. The Court, however, made observations suggesting that the discretion to exclude should be confined to situations where there were doubts about the reliability of the evidence. While these observations are strictly obiter, the focus on the quality of the evidence rather than its provenance would appear to be consistent with the prevailing approach of the courts to section78, and to constitute a substantial narrowing of the approach in Smurthwaite.

Another problematic area within S78 would be that in the context of legitimacy-The theory claims that s.78 may be rightly used to exclude evidence in the interests of ensuring the moral authority of a guilty verdict. In an appropriate case this could include all evidence obtained, directly or indirectly, by impropriety. But if there is other, genuinely independent; evidence of guilt it is not so clear that a guilty verdict would necessarily be illegitimate. To prevent a conviction at all in such circumstances may pay inadequate regard to the important goals of punishing the guilty and of vindicating the interests of victims. If the untainted evidence is causally unrelated to the police malpractice, is sufficient for conviction, and the defendant has not been prejudiced by the malpractice so that a fair trial is possible, then it would seem desirable for the court to balance the competing considerations of public policy.
Problematically:- The main point coming from subsection (1) of s.78 is that it is discretionary. The use of the phrase “may” highlights this assessment. Surely, for fairness sake all round, the word shall should be substituted for “may”? This is not however the route the legislators have sought to take and in the English law of Evidence this discretion formulated in 1984, still holds true. Therefore, arguably the court, from a defendant’s point of view has been left with too much power. The use of may also lends to the argument that as there are no guarantees to the exclusion of evidence, even if it is stolen, it would still be admissible hence the approach of the courts in using s.78 like using a sledgehammer to crack a nut.
Although s78 exists as a remedy it is not always appropriate in every situation and is seen as quite problematic. It must be noted that the use of s78 may leave open the possibility that the trial could still continue and it defendant may still be convicted on other untainted evidence. An application of the abuse of process doctrine would of course prevent this possibility.
Exclusion of evidence resulting from an undercover operation may or may not have the effect of preventing the trial from proceeding altogether. Whether it would have this effect would obviously be dependent on how important the evidence is to the prosecution’s case. The House of Lords has held, however, that in certain circumstances a court may, on account of improper conduct during an undercover operation, directly prevent the case from proceeding altogether. This would be achieved through the court’s exercise of its judicial discretion to stay proceedings as an abuse of the process. In R v Latif; R v Shahzad-another case which also involved the concept of drugs. Indeed, it was a Customs officer who actually imported the heroin and not Shahzad. Here the court questioned the remedies available and suggested that If, however, a court were always to stay the proceedings in such cases, it would ‘incur the reproach that it is failing to protect the public from serious crime’. If, on the other hand, the proceedings were never to be stayed, ‘the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. It emphasised that it would undermine public confidence in the criminal justice system and bring it into disrepute.’ It would be inappropriate, therefore, to adopt either extreme position. The approach, rather, should be as follows. First, if the court concludes that the impugned conduct would make a fair trial impossible, the proceedings must automatically be stayed. What is envisaged here, clearly, is the unlikely possibility of the conduct affecting trial fairness in the sense of compromising the ability of the trial to determine guilt or innocence properly. In the present case, it was ‘plain that a fair trial was possible and that such a trial took place’. In such a situation it would be necessary to proceed to the second question, which is whether, despite a fair trial being possible, the judge ought nevertheless to stay the proceedings on the basis that it would be contrary to the public interest in the integrity of the criminal justice system for the trial to proceed. (it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed)

In exercising this discretion, the court must perform a balancing exercise: ‘in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justified by any means. Latif; Shahzad established therefore that where undercover police operations are concerned, either the exclusion of evidence or a stay of the proceedings as a whole may be ordered by the trial judge in the exercise of his or her discretion. Unfortunately, the precise relationship between these alternative judicial measures was not properly clarified.

Latif ; Shahzad was followed, some years later, by the major decision of the House of Lords on entrapment in R v Looseley; A-G’s Reference (No 3 of 2000). It was confirmed here that while there is no substantive defence of entrapment in English criminal law, proof that the defendant in a particular case was improperly entrapped should lead to a stay of the proceedings. If, however, a stay is not ordered on the basis of improper entrapment, there remains the possibility that the evidence of the agent provocateur may be excluded under section 78. This would ensure to not compromise the integrity of the judicial system.
However although the courts seemed to have embraced the approach in Loosely it may still be criticized for a number of reasons. Firstly, the approach puts emphasis on an “exceptional opportunity” for the defendant to commit the offence-this may have implications. This may have the effect of causing the doctrine of entrapment to work in a discriminatory way; allowing those who have operated in a “criminal world” less of an opportunity of arguing that they have been entrapped than those who do not inhabit such a world. The result overall was that the scope of section 78 is no clearer in the light of Looseley; A-G’s Reference.
Equally problematic is R v Latif; R v Shahzad-where it had already made it clear that the abuse of process doctrine was available in entrapment cases alongside the section 78 discretion. This is also problematic as it can lead to confusion and ambiguities as to which remedy would be best suited if both can be used at the same time. Lord Hutton did hint on this issue within the judgement of looseley however, he did not justify the means to why they both can be used thus rendering his judgement to criticised also. This in effect is quite strange and the doctrine of entrapment needs to possibly reform or elaborate on this issue more.

Appropriate use of exclusion and stays are sufficient to ensure consistency between English law and international law as seen in the case of Teixeira de Castro v Portugal. Certainly R v Looseley; A-G’s Reference (No 3 of 2000) the Lords in Loosely developed the principles so that the English law would be consistent with the requirements of the ECHR- Article 6. The decision was right on the facts on the facts as noted by the Lords as they pointed out for instance the authorities had no good reason to suspect the defendant of being a “drug trafficker”. Therefore there is nothing in the principle applied by the European Court which suggests any difference from the current English approach to entrapment.
Problematically one can argue the English discretion claim that although recognised in theory, in practice the fundamental values of upholding and protecting human rights during criminal investigations are lost in a discretionary framework 'heavily weighted towards the interests of crime control'.

In terms of the relationship between judicial discretion and the power to stay proceedings it has been accepted that a stay of the prosecution is the appropriate remedy where there has been an allegation of entrapment. This is because if s78 was used to exclude improperly obtained evidence – the defendant may still be convicted. A stay of proceedings would prevent this possibility, as a prosecution founded on entrapment would be an abuse of the courts process.
However, there does seem to be a close relationship and potential overlap between judicial discretion and a stay of proceedings. As if a defendant’s application to stay a prosecution is refused, it would still be open to the courts discretion to exclude the evidence under s78.
In conclusion however, what is notable is that we have, for the first time in England, an articulate and authoritative judicial consideration of entrapment that recognises non convictions as a remedy- of the sort that comparable jurisdictions have had for some years. What is also novel about Looseley; A-G’s Reference is that it provides a rare instance of a holding by an English court that a stay of proceedings of entrapment was the appropriate judicial response in a particular case.