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Undercover Policing and the Human Rights Act

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…for the prevention of disorder or crime…

   Article 8, the European Convention on Human Rights

Undercover police operations, which are becoming more and more part of normal policing procedures, clearly offend Article 8 (1) of the European Convention, but are permissible under Article 8 (2) if they are 'in accordance with the law' and 'necessary…for the prevention of…crime.' So:

• When does an undercover operation become entrapment?
• If it is entrapment, what is the effect on criminal proceedings?
• How should the defence react when evidence is gathered in this way?

These areas have come under close scrutiny recently, as the courts have tried to balance the rights of individual defendants with the public interest in achieving the objects set out in Article 8 (2). This 'balancing act' has led to important new legislation since the passing of the Human Rights Act and some interesting reported cases.

The key legislation is The Regulation of Investigatory Powers Act 2000 ('RIPA'), supplemented by Codes of Practice, all now in force, regulating, respectively, Interception of Communications, Covert Surveillance and the use of Covert Human Intelligence Sources. The codes are available on the NCIS and Home Office websites [1].

When does an undercover operation become entrapment?

Until fairly recently, the leading authority on this question was R v Smurthwaite & Gill [2], which laid down some guidelines on where the line should be drawn. The main considerations were whether a police officer had enticed a defendant to commit an offence and whether the officer played an 'active' or a 'passive' role.

However, the recent House of Lords cases of Attorney-General's Reference No. 3 of 2000 and R v Looseley ("Looseley") [3] laid down new guidance on the most significant matters which a judge should consider when making a decision as to whether an operation amounted to entrapment:

• Whether the defendant would not otherwise have committed the offence
• the nature of the offence
• the nature of the 'entrapment'
• whether the police had ground for suspicion
• whether the operation was supervised properly
• how active or passive a role the police officer(s) played relative to the circumstances
• whether the defendant was presented with an 'unexceptional opportunity' to commit the offence
• whether the police had behaved in a way the public would condone in the circumstances
• whether the conduct of the police was so seriously improper that it brought the administration of justice into disrepute, so that prosecution would be an affront to the public conscience.

The considerations listed above have to be applied in each case. Police compliance with RIPA and its Codes will obviously be of the greatest significance in determining whether supervision of an undercover operation was in accordance with the law and whether the police have behaved in a particular case in a way which the public would condone.

Some circumstances will necessarily require a more active police role than others. In drugs cases, for example, Looseley recognises that a certain degree of persistence may be necessary. However, the police have to have reasonable grounds for suspecting their target to be a drug dealer and also must ensure that an undercover officer's behaviour does not go beyond presenting an 'unexceptional opportunity.' Was the police conduct preceding an offence no more than would be expected from others in the circumstances?

Sting Operations

Looseley accepts the validity of such operations, although it is stressed that they have to be properly organised, well run and that officers must act as ordinary members of the public would - in particular, not offering temptation to a defendant to commit a crime.

Police officers may therefore continue to dress up as elderly ladies and walk the streets where elderly ladies are being mugged, and may open jewellery shops where 'fences' and thieves are known to operate, in the hope that those handling stolen goods might be tempted to offload them!

But what about the 'Manna from Heaven' scenario, where a police officer creates an opportunity too good to be true and, unsurprisingly, a member of the public succumbs? In DPP v Williams & O'Hare [4] , police officers left open the rear doors of a lorry filled with cigarettes. The defendants were passing by and helped themselves. In that case, in 1994, the Court of Appeal held that there had been no entrapment: the officers had not encouraged or persuaded the defendants to act as they did - they had taken advantage of the situation voluntarily.

Somewhat surprisingly, dicta in Looseley suggest that the case would be decided in the same way today, although there is plenty of scope to argue to the contrary - see Re-drawing the Boundaries of Entrapment [5].

If an undercover operation does amount to entrapment, what is the effect on criminal proceedings?

Looseley indicates that, generally, if there has been entrapment, the prosecution should be stayed to protect the public from the executive abusing its power. Officers who overstep the mark are potentially liable to criminal proceedings for aiding, abetting and/or incitement.

More recently, however, in R v Mason & Others, [6] it has been made clear that, even if an operation oversteps the mark and breaches Article 8, the evidence obtained may still be admissible at trial, subject to the judge's discretion to exclude it as 'unfair' under Section 78 of the Police and Criminal Evidence Act 1986. Evidence obtained as a result of entrapment will not automatically be excluded, neither will proceedings automatically be stayed.

How should the defence react when evidence is gathered in this way?

The defence should first be astute, in considering any case involving undercover policing, to identify any possible argument to the effect that a defendant was entrapped into committing the crime in question.

In order to show entrapment, it will be necessary to establish to the satisfaction of the trial judge that the police crossed the line (which is sometimes difficult to define) between role-playing and encouraging.

The guidance given in Looseley and summarised above should be considered and applied to each individual case.

Likewise, a check should be made to establish whether the procedures laid down in RIPA (and any relevant Code) have been correctly followed and, if there have been any breaches, the extent, if any, to which such breaches may be relied upon.

Be aware that much of the material underlying the Crown's witness statements which might reflect how an undercover operation worked, e.g. operation logs and internal police communications, will often be the subject of a public interest immunity application by the Crown - the first hurdle the defence faces will be to try to force disclosure!

Where the possibility of an entrapment argument has been identified, a Defence Statement should be drafted so as to 'flag up' the issue in order to force secondary disclosure of pertinent documents by the Crown. In addition, the defence should apply to be heard inter partes on any ex parte application being made by the Crown.

Any Article 8 'abuse' issue should be raised in tandem with an Article 6 and Section 78 'unfairness' submission.

References

1. www.ncis.co.uk; www.homeoffice.gov.uk
2. (1994) 98 Cr App R 437
3. [2001] UKHL 53; [2002] 1 Cr App R 29
4. (1994) 98 Crim App R 206
5. Andrew Ashworth, Criminal Law Review 2002, p.161
6. [2002] EWCA Crim 385

15 January 2003

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