Judgments - Regina v Looseley

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    68. Since the English doctrine assumes the defendant's guilt and is concerned with the standards of behaviour of the law enforcement officers, predisposition is irrelevant to whether a stay should be granted or not. The facts which lead the police to suspect that crimes are being committed and justify the use of an undercover officer or test purchaser may also point to the accused and show predisposition. But that is a coincidence. The fact that, for example, the accused has previous convictions is in English law neither necessary nor sufficient. Suspicion may attach to a person who has previously escaped conviction and, contrariwise, the fact that a person has been previously convicted may provide no ground for suspecting a current course of criminality which would justify the use of covert operations. Nor is the fact that a person is a drug addict and therefore likely to know a supplier a sufficient ground in itself for tempting him to move altogether outside his usual way of life and act as intermediary in the supply of a substantial quantity of drugs. Such persons may be particularly vulnerable to unfair pressures of this kind. It may be possible to justify them for the purpose of securing the prosecution and conviction of the supplier but not the prosecution and conviction of the intermediary.

    Active and passive

    69. The need for an authorised and bona fide investigation into suspected criminality is sufficient to show that the question of entrapment cannot be answered simply by asking whether the defendant was given an opportunity to commit the offence of which he freely availed himself. This is important but not enough. The matter is more complicated and other factors have to be taken into account. Likewise, I do not think that even the causal question can be answered by a mechanical application of a distinction between "active" and "passive" conduct on the part of the undercover policeman or informer. In cases in which the offence involves a purchase of goods or services, like liquor or videotapes or a taxi ride, it would be absurd to expect the test purchaser to wait silently for an offer. He will do what an ordinary purchaser would do. Drug dealers can be expected to show some wariness about dealing with a stranger who might be a policeman or informer and therefore some protective colour in dress or manner as well as a certain degree of persistence may be necessary to achieve the objective. And it is been said that undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise. A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary between causing the offence to be committed and providing an opportunity for the defendant to commit it.

    70. Likewise it seems to me that when Lord Bingham in Amin's case [2000] 1 WLR 1071, 1077, said that the accused should not be "incited, instigated, persuaded, pressurised or wheedled" into committing the offence, he was not intending each of those verbs to be given a disjunctive and technical meaning. He was intending to evoke a more general concept of conduct which causes the defendant to commit the offence as opposed to giving him an opportunity to do so. No doubt a test purchaser who asks someone to sell him a drug is counselling and procuring, perhaps inciting, the commission of an offence. Furthermore, he has no statutory defence to a prosecution. But the fact that his actions are technically unlawful is not regarded in English law as a ground for treating them as an abuse of power: see R v Latif [1996] 1 WLR 104 and compare Ridgeway v The Queen 184 CLR 19.

    71. In summary, therefore, the principles of English law on which a stay of proceedings may be granted on grounds of entrapment involve the consideration of a number of aspects of the behaviour of the law enforcement authorities, some of which I have examined in detail, and deciding whether the involvement of the court in the conviction of a defendant who had been subjected to such behaviour would compromise the integrity of the judicial system.

    Teixeira de Castro v Portugal

    72. My Lords, these principles are in my opinion entirely consistent with the decision of the European Court of Human Rights in de Castro's case 28 EHRR 101. Both the commission and the court stressed the fact that the policemen, although not acting unlawfully, were not authorised to use undercover operations. Unlike the case of Lüdi v Switzerland (1992) 15 EHRR 173, no investigation had been opened by a judge and there was no judicial or other supervision of the officers. Although the United Kingdom technique for authorising and supervising such operations (as described in the Code of Practice) is very different from the judicial supervision in continental countries, the purpose is the same, namely to remove the risk of extortion, corruption or abuse of power by policemen operating without proper supervision. The European Court obviously had these risks very much in mind when it condemned the methods used to prosecute Mr de Castro.

    73. The court also recorded that the "competent authorities", that is to say, the authorities who would normally be expected to authorise such an investigation, had no good reason to suspect that Mr de Castro was a drug trafficker. Nor had the police themselves heard of him until an intermediary told them that he was a person who might be able to supply heroin. They immediately drove to his house in the middle of the night, said that they wanted to buy 200,000 escudos worth of heroin and produced a roll of banknotes. Mr de Castro obtained the heroin from an intermediary and, apart from the intermediary's suggestion that he might be able to supply, there was no other evidence that he had been dealing in heroin.

    74. My Lords, every case depends upon its own facts but there is nothing in the general principle applied by the European court or the cluster of factors to which it attached importance which suggests any difference from the current English approach to entrapment. The contrary submission depends upon an excessively literal and technical analysis of some of the language used by the court. So for example, the court said (at p 116, para 38) of the judgement that -

    "The two police officers did not confine themselves to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence".

    75. This sentence is relied upon for the proposition that even in an authorised undercover operation, the officer must take no active step such as offering to buy an illegal substance. Such conduct amounts to "incitement" of the offence. I do not believe that the court intended to lay down such a rigid and prescriptive rule. The description of the policemen's conduct must be seen as one of the various factors which led to the court's conclusion that there had been an abuse of police power which denied the defendant a fair trial

    The certified questions

    76. This brings me to the certified questions in the two appeals before the House. First, R v Looseley, in which the certified question was:

    "Should the judge have refused to admit the evidence of the undercover police officer "Rob" because the role played by "Rob" went beyond observation and involved asking the appellant to supply him with heroin, a request to which, on the judge's findings, the appellant readily agreed."

    77. The facts of the case are stated in the speech of my noble and learned friend, Lord Hutton, and I need not repeat them. The factors to which I attach importance are the following. First, Rob was acting in the course of an authorised undercover operation arising out of concern about the supply of Class A drugs in the Guilford area. Secondly, the Wooden Bridge public house was reasonably suspected to be a focal point for the trade. Thirdly, having obtained the defendant's telephone number from someone at the public house as a potential source of supply, Rob telephoned and asked him in general terms whether he could "sort us out a couple of bags", to which the defendant said yes. Rob might just as well have said, "Are you by any chance a heroin dealer?" and received an affirmative reply.

    78. From that point, it seems to me, Rob and his superiors who were controlling his operations had reasonable cause to suspect that the defendant was a dealer. The subsequent offer to purchase was in the course of a legitimate undercover purchase and not calculated to cause him to do anything which he would not have done in response to a similar request from any customer. I attach little importance to the fact that he "readily agreed" to sell. This seems to me to be neutral, because the question is not so much his behaviour but that of the police. It means only that the police did not have to take any steps to persuade him which might have taken them across the boundary between giving him the opportunity to commit the offence and causing him to do so. The facts are in my opinion miles away from de Castro's case 28 EHRR 101, and I think that the judge was right to reject the application to exclude Rob's evidence under section 78 and should for the same reasons have refused an application for a stay.

    79. Mr O'Connor also submitted that the telephone call to the defendant and the request for drugs were an infringement of the right to respect for his private life under article 8. I regard this submission as unsustainable. The defendant was on his own admission in the business of dealing in drugs. He responded willingly to solicitation. The policeman did not invade his privacy any more than a customer who walks into a shop. The fact that the business was unlawful and this particular solicitation was from a policeman does not make it a breach of his human rights: see Lüdi v Switzerland 15 EHRR 173. I would therefore answer the certified question no and dismiss the appeal.

    80. In the Attorney-General's Reference No.3 of 2000 the question referred to the House by the Court of Appeal is:

    "In a case involving the commission of offences by an accused at the instigation of undercover police officers, to what extent, if any, have:

    (i) the judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984; and

    (ii) the power to stay the proceedings as an abuse of the court;

    been modified by article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights".

    81. To this question I would give the same answer as the Court of Appeal, namely that no modification is required. But, like my noble and learned friend, Lord Hutton, I respectfully disagree with the Court of Appeal's view that the judge was wrong to stay the proceedings. In my opinion he was entitled to reach the view that he should. On the statements before him, which by consent he was invited to accept as true, the defendant had never dealt in heroin. He was induced to procure heroin for the undercover officer by the prospect of a profitable trade in smuggled cigarettes. The judge was entitled to take the view that even if this was an authorised operation, the police had caused him to commit an offence which he would not otherwise have committed.

LORD HUTTON

My Lords,

    82. The issue which arises in these two cases is what conduct by undercover police officers in obtaining evidence against a drugs dealer will constitute entrapment of such a nature that either a prosecution based on that evidence will be stayed as an abuse of process or the evidence will be excluded under section 78 of the Police and Criminal Evidence Act 1984.

    83. The two cases before the House have been heard together. One case is the appeal of Grant Spencer Looseley against his conviction at Guildford Crown Court on three counts of supplying or being concerned in supplying to another a Class A controlled drug (heroin). The other case is a reference brought by the Attorney General pursuant to section 36 of the Criminal Justice Act 1972 and consequent on the acquittal of a defendant charged on two counts of supplying or being concerned in supplying to another a Class A controlled drug (heroin).

The appeal of Looseley

    84. The prosecution case was that the appellant and another defendant named Harris had supplied heroin to an undercover police officer known as "Rob". In 1999 police in Guildford mounted an undercover operation because of their concern about the trade in Class A drugs in that area. One focus of the operation was a public house where a man provided Rob with the appellant's first name and telephone number and suggested to him that he should telephone the appellant if he wished to obtain drugs. Rob telephoned the appellant and said to him, "Hello, mate, can you sort us out a couple of bags?", and the appellant replied, "Er yes, I'll sort you out, mate." The appellant then gave the officer directions to his flat. The officer went to the flat, and a price of £30 for half a gram of heroin was agreed. The appellant and Rob then drove to the flat of Harris in Rob's car. The appellant left the car taking £30 from Rob. He returned a few moments later saying that he had "the stuff". The appellant and Rob then returned to the appellant's flat where the appellant took a small package from his mouth, opened it, took a small quantity of the substance in the package for himself, and gave the remainder to Rob. On analysis the package was found to contain 152 milligrams of heroin at 100% purity. This transaction was the subject of count 2 of the indictment.

    85. Four days later Rob again telephoned the appellant, who agreed to "sort him out". Rob and the appellant met at the public house. They then drove in Rob's car to a theatre in Guildford. The appellant left the car, once again taking £30 of the officer's money with him. When he returned he handed a cling-film ball to Rob. They then went to the appellant's flat, where the appellant took a small amount from the cling-film ball and returned the remainder to Rob. On this occasion the wrap was found, when analysed, to contain 132 milligrams of heroin at 70% purity. This transaction was the subject of count 3 of the indictment.

    86. Three days later Rob once again went to the appellant's flat and asked if the appellant could supply him with a gram of heroin. The appellant spoke to someone by telephone. Rob and the appellant went to another address. The appellant took £60 from the officer, and returned with a cling-film wrap. The appellant told Rob that this was only half the amount but the remainder would be ready in an hour. In fact, although the officer returned to the appellant's flat several times that afternoon, no further drugs were supplied to him. The wrap that he did receive was found, on analysis, to contain 224 milligrams of heroin at 100% purity. This transaction was the subject of count 4 of the indictment.

    87. At the trial in the Crown Court it was submitted as a preliminary issue to the trial judge, Judge Bassingthwaighte, that the indictment ought to be stayed as an abuse of the process of the court or, alternatively, that the evidence of Rob should be excluded pursuant to the discretion conferred on the judge by section 78(1) of the Police and Criminal Evidence Act 1984 which provides:

    "In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

    88. There was a voir dire and the judge heard evidence from Rob and from Detective Inspector Marjoram, the officer in charge of the operation which gave rise to the indictment. On the conclusion of the voir dire the judge delivered his ruling in which he declined either to stay the indictment as an abuse of process or to exclude the evidence in the exercise of his discretion under section 78 of the 1984 Act. In the course of his ruling the judge referred to a number of English authorities and also to the judgment of the European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EHRR 101. At pp 9 and 10 the judge said:

    "I do not understand from any of the cases to which I have referred (Teixeira included) that there is a discernible principle that evidence obtained as a result of undercover observation or infiltration is inadmissible. The guiding principle seems to be as identified in the English cases, that the commission of offences should come about without the prompting of undercover officers in the sense that they provoke or incite the commission of offences which would not otherwise have occurred without their intervention. . . .

    "In Texeira's case it also seemed of importance to the court that the applicant was not known to be involved in the drugs scene, possibly because he had no convictions for drug offences. The court seems to suggest that incitement thus became more of a consideration because it involved someone not known to be involved in that world, and I shall return to that issue in due course. . . .

    "While I bear the provisions of article 6 of the Convention in mind, I also remind myself that the concept of proportionality referred to in the case of Soering v. United Kingdom (1989) 11 EHRR 439, indicates that it is inherent to the whole of the Convention that there is a search for the fair balance between the demands of the general interests of the community and the requirements of the protection of the individual's human rights."

    Referring to the case of Teixeira de Castro 28 EHRR 101 the judge said at p 12:

    "The court's finding is conclusively expressed in para 39 at p 116 of the report. It is based upon the fact that in the court's opinion the officers instigated an offence which would not have occurred without their intervention. That is the essence of the ruling, and while I note comments about officers being active and passive, which our own Court of Appeal have also made, I do not take it as expressed in Texeira that simply because an undercover officer may behave actively that conduct is prohibited and may not found a prosecution. Active conduct is not of course necessarily the same as incitement. Certainly, however, caution is expressed, and rightly expressed, about undercover officers moving from passive to active roles, but I take Teixeira to say that what must occur in all such situations is an assessment of all the relevant circumstances, just as the Court of Appeal has said in England and Wales.

    As I have said already, what distinguishes this case both from Lawrence and Nash and from Teixeira is that a course of offending is revealed: not just one offence."

    And at pp 13 and 14:

    "It therefore seems to me that the European Court, looking at all the surrounding circumstances, saw the possibility that Texeira, a man of relevant good character, was persuaded into just one drug procurement, possibly against his better judgment, possibly tempted for gain, and that he was therefore incited into the commission of an offence which would otherwise never have occurred to him. The court saw the involvement of the undercover officers in that context.

    What occurred here was that these two defendants— both at least known drug users, both the subject of drugs intelligence and both then discovered and contacted only after infiltration of the local drugs scene— then supplied heroin on a continuing basis to an undercover officer. Admittedly, that officer presented himself as an ideal customer so far as a drug dealer is concerned, but I do not consider that he did anything other than present himself in that condition. I find it difficult, underlining the fact that I am here considering all the surrounding circumstances, to assess that conduct as incitement."

    89. Following this ruling the appellant changed his pleas on counts 2 to 4 to guilty and the sentencing of the appellant was postponed until a date to be fixed.

    90. The appellant appealed against his conviction to the Court of Appeal and the appeal was dismissed. In delivering the judgment of the Court of Appeal Roch LJ stated:

    "30.  In our judgment the law is clear, and the law is consistent with the European Convention of Human Rights and the judgment of the European Court of Human Rights, namely that if an accused person's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by a law enforcement officer, then the evidence of that law enforcement officer should be excluded by the trial judge exercising his power under section 78 of the 1984 Act. In many cases were such a ruling to be made the case against the accused would not be able to proceed further. On the other hand, if the law enforcement officer has done no more than give an accused the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else, then there is no reason why the officer's evidence should be excluded and the accused's trial should proceed with that evidence being admitted. No doubt there will be cases, of which this was one, where such a ruling will lead to a change of plea.

    "31.  On which side of that line evidence of a law enforcement officer will fall is primarily a question of fact for the trial judge to decide when making his ruling. It is of significance that in the Teixeira case in the judgment of the European Court at paragraph 34 this appears:

    'The court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.'"

    The Court of Appeal certified the following point of law of general public importance for the opinion of the House:

    "Should the judge have refused to admit the evidence of the undercover police officer "Rob" because the role played by "Rob" went beyond mere observation and involved asking the appellant to supply him with heroin, a request to which, on the judge's findings, the appellant readily agreed?"

The Attorney General's Reference

    91. The defendant ("the acquitted person") appeared in the Crown Court at Derby before Judge Appleby QC charged on one count with the offence of supplying to another a Class A controlled drug (heroin) and on a second count with the offence of being concerned in supplying to another a Class A controlled drug (heroin).

    92. The circumstances in which it was alleged the offences were committed were summarised as follows by Judge Appleby in his ruling at pp 8 and 9:

    "Police officers see a man called S and they ask him if he wants to buy — these are undercover officers — some [contraband] cigarettes and so on. He went with them to where the defendant . . . . is. S goes to the car where [the defendant] was. Cigarettes are handed over. There is a conversation about cigarettes and the conversation is to do with cigarettes. Thereafter the conversation with the defendant is: 'Can you sort out any brown?' Later on many, many conversations with the defendant, offering cigarettes and persuading him, within reason initially, to provide them with a Class A drug. Eventually the defendant obtains drugs from another source. It is on record that he said at one stage: 'I'm not really into heroin myself.'"

    It is also relevant to record that when interviewed by the police after his arrest the acquitted person said that he had had "nothing at all" to do with heroin, and that he was "not interested" in it, but that he had become involved because two men had approached him, offering to sell him cheap cigarettes. He said that the officers "were getting me cheap fags, so as far as I was concerned a favour for a favour."

    93. At the commencement of the trial the defence applied both for the exclusion of the evidence of the undercover police officers under section 78 of the 1984 Act and for a stay of the prosecution as an abuse of process. The trial judge approached the matter as an application for a stay on grounds of abuse of process and granted the stay. On the next day the trial judge lifted the stay, the prosecution offered no evidence and verdicts of not guilty were entered.

    94. In his ruling, after summarising the facts in the passage which I have already set out, Judge Appleby said at p 9:

    "An elaboration of those facts by Mr Munt on behalf of the defence, admitted facts, makes it absolutely clear to me that in this case these officers went further than was permissible and in fact incited and procured this defendant to commit an offence he would not otherwise have committed."

    The judge then set out passages from the judgment of the European Court of Human Rights in Teixeira de Castro v Portugal 28 EHRR 101 and continued at pp 13 and 14:

    "The judgment of the European Court of Human Rights goes on to say this:

    'In the light of all these considerations, the court concludes that the two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed.'

    I repeat those words, and with considerable hesitation and reluctance in the light of all the considerations, I come to the conclusion that the police officers in this case and their actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed.

    And because of that, on the basis of that court's decision, the intervention of the officers and its use in the criminal proceedings, these criminal proceedings, would mean that right from the outset the applicant would be deprived of a fair trial."

    95. On the acquittal the Attorney General referred the following point of law to the Court of Appeal for its opinion:

    "In a case involving the commission of offences by an accused at the instigation of undercover police officers, to what extent, if any, have: (i) The judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984; and (ii) the power to stay the proceedings as an abuse of the court;

        been modified by article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights?"

    96. In delivering the judgment of the Court of Appeal Kennedy LJ stated, at para 35:

    "In considering in a case of this type an application either to stay or to exclude evidence pursuant to section 78 the court will be concerned both with the freedom of action of the accused and with the propriety or otherwise of the actions of the undercover officers. In most cases the principal question will be whether the officers did no more (whether by active or passive means) than to afford the accused the opportunity to offend, of which he freely took advantage in circumstances where it appears that he would have behaved in a similar way if offered the opportunity by someone else or whether, on the other hand, by means of unworthy or shameful conduct, they have persuaded him to commit an offence of a kind which otherwise he would not have committed. That approach is in our judgment consistent without modification with article 6. Teixeira de Castro must be considered on its own facts in the setting of Portuguese criminal procedure. It will not always be easy in a particular case to say whether the accused freely accepted an opportunity and would have acted similarly if it had been presented by someone else."

 
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