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State entrapment

Published online by Cambridge University Press:  02 January 2018

Hock Lai Ho
Hock Lai Ho*
Affiliation:
Faculty of Law, National University of Singapore
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Abstract

This paper addresses a cluster of issues. What is state entrapment? Why is it objectionable? Is it wrong to prosecute the entrapped? What should the court do when the case is brought before it? These questions are intertwined. To know what is wrong with state entrapment, we must be clear about what it is; our understanding of what constitutes state entrapment, with its negative connotation, is shaped by what we think is distinctively wrong with it; and, we cannot know how the court should deal with state entrapment unless we identify the precise problem to which a judicial response may be required. The right response is a permanent stay of proceedings. A stay should be granted because the executive does not come to court with clean hands. It lacks the standing to blame the entrapped for what he or she did, and the state lacks the standing to condemn the person for the same.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 1 , March 2011 , pp. 71 - 95
Copyright
Copyright © Society of Legal Scholars 2011

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References

1 Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239.

2 R v Sang [1980] AC 402.

3 Ridgeway v R (1995) 184 CLR 19 (since overtaken by federal and state statutes: see, eg, Australian Commonwealth Evidence Act 1995, s 138). The same response is taken in New Zealand (eg Police v Lavalle [1979] 1 NZLR 45; now see New Zealand Evidence Act 2006, s 30) and South Africa (Criminal Procedure Act No 51 of 1977, s 252A(3)).

4 R v Looseley, Re Attorney-General's Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060 (R v Looseley ).

5 R v Mack (1988) 44 CCC (3d) 513.

6 Sorrells v US (1932) 287 US 435, the first in a line of US Supreme Court cases. The law on entrapment varies at the state level; see Marcus, P The Entrapment Defense (Newark: Lexis Nexis/Matthew Bender, 3rd edn, 2002).Google Scholar

7 Ridgeway v R, above n 3, at 70.

8 See, eg, Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR 377 at para 27; R v Looseley, above n 4, at [1], [10], and [36]; Sorrells v US, above n 6, at 448 and 442; R v Mack, above n 5, at 523; S v Malinga and Others 1963 (1) SA 692 at 693F–G; and Application No 74420/01 Ramanauskas v Lithuania (unreported) 5 February 2008 (ECHR) at para 55.

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14 US v Russell (1973) 411 US 423.

15 Ridgeway v R, above n 3.

16 I thank Mike Redmayne for this example.

17 On this aspect of state entrapment, see Yaffe, above n 13, at 38.

18 In England, the ‘investigation into a crime is carried out by the executive, in the form of the police. The police under the supervision of the independent Crown Prosecution Service… charge the defendant with the offence, prepare the case against him and seek to prove it at the trial’: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47 at [16].

19 On causation in entrapment cases, see Feinberg, J ‘Causing voluntary actions’ in Feinberg, J Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970) pp 173–176.Google Scholar Causation is required even on the ‘objective’ approach to entrapment taken in some states in the USA: Marcus, above n 6.

20 As Gleeson CJ noted in R v Sloane (1990) 49 A Crim R 270 at 272–273: ‘whatever its precise effect may be, the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit’.

21 R v Jones [2008] QB 460.

22 Application No 74355/01 Milinienė v Lithuania (unreported) 24 June 2008 at para 38; Application No 10071/04 Malininas v Lithuania (unreported) 1 July 2008 at para 37.

23 [2007] EWCA Crim 3493.

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27 See, eg, Donnelly, Rc ‘Judicial control of informants, spies, stool pigeons, and agent provocateurs’ (1960) 60 Yale LJ 1091 at 1111.CrossRefGoogle Scholar

28 See, eg, Sorrells v US, above n 6, at 454; Law Commission Criminal Law – Report on Defences of General Application Law Com No 83 (1977) pp 44–45.

29 Sherman v US (1958) 356 US 369 at 372; US v Russell, above n 14, at 445.

30 Sorrells v US, above n 6, at 451.

31 Ibid, at 454.

32 Braithwaite, J, Fisse, B and Geis, G ‘Covert facilitation and crime: restoring balance to the entrapment debate’ (1987) 43 J of Social Issues 5.CrossRefGoogle Scholar

33 As noted in many cases, eg, Summit Holdings Ltd v PP [1997] 3 SLR 922 at para 50; Sorrells v US, above n 6, at 441; Sherman v US, above n 29, at 372; R v Looseley, above n 4, at [2] and [3].

34 Dworkin, G ‘the serpent beguiled me and I did eat: entrapment and the creation of crime’ (1985) 4 Law and Philosophy 17 at 18.CrossRefGoogle Scholar See also US v Russell, above n 14, at 444; R v Mack, above n 5, at 522.

35 See Washington v Lively (1996) 921 P2d 1035 (Supreme Court of Washington).

36 See, eg, R v Mack, above n 5, at 560 per Lamer J: ‘it is not a proper use of the police power to simply go out and test the virtue of people on a random basis’.

37 Dworkin, above n 34, at 33. In Canada, the lack of reasonable suspicion is built into the definition of entrapment: R v Mack, above n 5, at 559.

38 See, eg, R v Looseley, above n 4, at [27] per Lord Nicholls and [65] per Lord Hoffmann; R v Mack, above n 5, at 552–553; R v Barnes [1991] 1 SCR 449.

39 See, eg, A Ashworth ‘Re-drawing the boundaries of entrapment’[2002] Crim L R 161 at 168–169; Bronitt, S ‘the law in undercover policing: a comparative study of entrapment and covert interviewing in Australia, Canada and Europe’ (2004) 33 Common Law World Review 35 at 51CrossRefGoogle Scholar; and Ormerod, D and Roberts, A ‘the trouble with Teixeira : developing a principled approach to entrapment’ (2002) 6 International J of Evidence and Proof 38 at 52.CrossRefGoogle Scholar

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41 Eg in Syon v Hewitt [2006] IEHC 376 at [6.13], a case involving illegal sale of tobacco to a minor, the Irish High Court held: ‘the practice of random test purchases is permissible and, indeed, necessary in such cases’. The practice is similarly condoned in England (DPP v Marshall [1988] 3 All ER 683), Australia (Robinson v Woolworths Ltd (2005) 153 A Crim R 546) and New Zealand (eg McGrogan v Scenic Cellars Partnership Ltd [2006] NZAR 170; but cf Fitzsimons v The Mean Fiddler Ltd [2008] NZAR 73 where there was a positive and criminal misrepresentation of age by the test purchaser). Test purchases are sometimes explicitly authorised by statute (eg Trade Description Act 1968, s 27 (England and Wales)), but, in Canada, they need not be (eg R v Clothier [2009] OJ No 4495 (unreported) 14 October 2009).

42 Taylor v Vandna Enterprises Ltd AP 22/PL02, 25 July 2002 (High Court, Auckland) per O'Regan J at para 22, quoted in Fitzsimons v The Mean Fiddler, above n 41, para 19.

43 Generally, see R v Thornton [2003] EWCA Crim 919 at [24] (test purchase of drugs from a willing seller not an entrapment).

44 R v Sang, above n 2, at 443, per Lord Salmon.

45 For a case coming close to this scenario: Hampton v US (1976) 425 US 484. Cf R v Mack, above n 5, at 569.

46 The existence of ulterior motive or malice is potentially an independent basis for arguing that the trial is an abuse of process; see Rogers, J ‘the boundaries of abuse of process in criminal trials’ (2008) 61 Current Legal Problems 289 at 304–305CrossRefGoogle Scholar and Law Society of Singapore v Tan Guat Neo Phyllis, above n 1, paras 132 and 147.

47 Jacobson v US (1992) 112 SCt 1535 at 1543.

48 R v Mack, above n 5, at 567–568.

49 See Squires, D ‘the problem with entrapment’ (2006) 26 OJLS 351.CrossRefGoogle Scholar

50 Dworkin, above n 34, at 25.

51 That we should focus on the type rather than the token of the crime, see Levy, N ‘in defense of entrapment in journalism (and beyond)’ (2002) 19 J of Applied Philosophy 121 at 124.CrossRefGoogle Scholar See also R v Sloane, above n 20, at 273 per Gleeson CJ: ‘the reference to committing a crime which otherwise would not have been committed is a reference to a form of conduct rather than to a particular transaction’.

52 On which, see Altman, A and Lee, S ‘Legal entrapment’ (1983) 12 Philosophy and Public Affairs 51 at 57Google Scholar: ‘A general intention is an intention to commit an action of a certain type without thought of specifics such as time and place’, whereas a ‘specific intention is an intention to commit an action of a certain type such that the time and place are exactly or approximately determined’.

53 Nottingham City Council v Amin [2000] 1 WLR 1071.

54 This example is given by Feinberg, above n 19, p 173 and also in ‘Criminal entrapment – instigating the unpredisposed’ in his Problems at the Roots of Law: Essays in Legal and Political Theory (Oxford: Oxford University Press, 2002) p 59.

55 Hypothetical example given in Jenkins v Government of USA [2005] EWHC 1051 at [20]. See also R v Looseley, above n 4 (second of the conjoined appeals): a dealer in contraband cigarettes was incited to traffic in heroin for the first time.

56 For an example of an unusually persistent and highly contrived entrapment operation, see eg, Jacobson v US, above n 47.

57 See Marcus, above n 6, ch 2.

58 The majority in US v Hollingsworth (1994) 27 F3d 1196 incorporated this feature into the concept of predisposition. See especially at 1199.

59 As suggested by Feinberg, above n 19, p 176.

60 Feinberg, above n 54, pp 75–76.

61 Katz, L Bad Acts and Guilty Minds – Conundrums of the Criminal Law (Chicago: Chicago University Press, 1987) pp 160–161.CrossRefGoogle Scholar

62 Above n 4, at [28].

63 See Marcus, above n 6, p 86.

64 Altman and Lee, above n 52, at 64.

65 Kleinig, above n 9, p 161.

66 Even on the objective approach taken in the USA, ‘the defendant must show that the conduct of government, in fact, induced him to commit the crime’: Marcus, above n 6, p 100.

67 Above n 3, at 92 (dissenting judgment), citing R v Looseley, above n 4, at [23] per Lord Nicholls and [102] per Lord Hoffmann.

68 See majority judgment in US v Hollingsworth, above n 58.

69 Cf Squires, above n 49.

70 Cf McAdams, above n 26, at 144–145.

71 Eg Eisikovits, N ‘Moral luck and the criminal law’ in Keim Campbell, J, O'Rourke, M and Shier, D (eds) Law and Social Justice (Cambridge, MA: MIT Press, 2005).Google Scholar

72 von Hirsch, A Doing Justice – The Choice of Punishments (New York: Hill and Wang, 1976) ch 17.Google Scholar

73 von Hirsch, A Censure and Sanctions (Oxford: Clarendon Press, 1993) p 106.Google Scholar Some would claim, as does Bazelon, Dl ‘the morality of the criminal law’ (1976) 49 California Law Review 385 at 385Google Scholar, that ‘there can be no truly just criminal law in the absence of social justice’. For a sample of the literature, see Heffernan, Wc and Kleinig, J (eds) From Social Justice to Criminal Justice – Poverty and the Administration of Criminal Law (New York: Oxford University Press, 2000).Google Scholar

74 To cite just one of many writings by RA Duff in this area: Answering for Crime – Responsibility and Liability in the Criminal Law (Oxford: Oxford University Press, 2007) pp 191–193.

75 Sorrells v US, above n 6, at 441.

76 Ibid, at 452.

77 Sherman v US, above n 29, at 379; Ridgeway v R, above n 3, at 20.

78 Law Society of Singapore v Tan Guat Neo Phyllis, above n 1, at 294–295.

79 This and other examples are given by Friedland, above n 11, at 16–17.

80 Above n 4, at [37].

81 A Choo Abuse of Process and Judicial Stays of Criminal Proceedings (Oxford: Oxford University Press, 1993) p 151.

82 Hughes, Pm ‘Temptation and culpability in the law of duress and entrapment’ (2006) 51 Crim L Q 343.Google Scholar

83 Above n 5, at 545–546. See also Robinson, Ph Structure and Function in Criminal Law (Oxford: Oxford University Press, 1997) pp 79–80.CrossRefGoogle Scholar Entrapment does not belong together with defences such as duress because there is a crucial distinction between a threat and an offer; see Seidman, Lm ‘the Supreme Court, entrapment, and our criminal justice dilemma’ (1981) 5 Supreme Court Review 111 at 133 and 139.CrossRefGoogle Scholar

84 R v Mack, above n 5, at 546.

85 US v Hollingsworth, above n 58. Cf Katz, above n 61, pp 158–159.

86 See, eg, Brannan v Peek [1948] 1 KB 68 at 72; R v Birtles [1969] 1 WLR 1047 at 1049–1050; Browning v JWH Watson (Rochester) Ltd [1953] 1 WLR 1172 at 1177.

87 R v McCann (1971) 56 Cr App R 359; Tan Boon Hock v PP [1994] 2 SLR(R) 32. See also R v Sang, above n 2, at 451. Contrast Amato v R (1982) 69 CCC (2d) 31 at 74–75.

88 See, eg, R v Sang,ibid, at 436; Hampton v US, above n 45, at 490.

89 Below n 130.

90 Above n 1, para 138 (original emphasis). See also Ridgeway v R, above n 3, at 40.

91 See generally Ho Hock Lai ‘Liberalism and the criminal trial’, forthcoming in a joint issue of Singapore J of Legal Studies and Sydney Law Rev.

92 See generally Duff, Ra ‘“I might be guilty, but you can't try me”: estoppel and other bars to trial’ (2003) 1 Ohio State J Crim Law 245 Google Scholar; Duff, above n 74, ch 8; Duff, A et.al (eds) The Trial on Trial: Towards a Normative Theory of the Criminal Trial vol 3 (Oxford: Hart, 2007) ch 8Google Scholar; Tadros, V Criminal Responsibility (Oxford: Oxford University Press, 2005) p 319 Google Scholar; Rogers, J ‘the boundaries of abuse of process in criminal trials’ (2008) 61 Current Legal Problems 289 at 293–295.CrossRefGoogle Scholar

93 It does so by extending to entrapment cases the general discretion to exclude illegally or improperly obtained evidence. See Ridgeway v R, above n 3. It is unclear whether exclusion of evidence is an option in Canada: R v Imoro (2010) 251 CCC (3d) 131 (Ontario Court of Appeal) at para 28; it is in England (although a stay is the preferred option): R v Looseley, above n 4.

94 Friedland, above n 11, at 22–23. Similarly, see R v Looseley, above n 4, per Lord Nicholls at [16].

95 Panday v Virgil [2008] UKPC 24, [2008] 1 AC 1386 at [28]. The European Court of Human Rights takes an unusually wide interpretation of ‘fair trial’: A Choo Abuse of Process and Judicial Stays of Criminal Proceedings (Oxford: Oxford University Press, 2nd edn, 2008) p 148.

96 See Law Commission, above n 28, pp 44–45; views expressed therein judicially endorsed in R v Looseley, above n 4, at [36], and see also [42].

97 R v Looseley, ibid, at [17].

98 Ibid, at [1].

99 Eg, Sherman v US, above n 29, at 372 and 384.

100 Dworkin, above n 34, at 32.

101 See Duff et.al, above n 92, p 243.

102 Yaffe, above n 13, at 22.

103 It is a standard practice of the US Federal Bureau of Investigation to ‘make clear and unambiguous to all concerned the illegal nature of any opportunity used as a decoy’: Katzmann, Gs Inside the Criminal Process (New York: WW Norton, 1991) p 81.Google Scholar

104 See, eg, A Ashworth ‘Testing fidelity to legal values: official involvement and criminal justice’ in Shute, S and Simester, Ap (eds) Criminal Law Theory: Doctrines of the General Part (Oxford: Oxford University Press, 2002).CrossRefGoogle Scholar

105 See, in a different context, Schrock, Ts and Welsh, Rc ‘up from Calandra: the exclusionary rule as a constitutional requirement’ (1974) 59 Minnesota Law Review 251.Google Scholar

106 SM Summit Holdings Ltd v PP, above n 33, para 48.

107 Sorrells v US, above n 6, at 455. Objection to the admission of entrapment evidence is often expressed in terms of the prosecution's lack of ‘clean hands’ in South Africa: see, eg, decision of the Supreme Court of Appeal of South Africa in Case No 320/07 Hammond v Stat e [2007] SCA 164 (29 November 2007) paras 10 and 22, available at http://www.supremecourtofappeal.gov.za/judgments/sca_2007/sca07-164.pdf and the judgments of the South African High Court in S v Nortjé 1997 (1) SA 90 (C) at 103E–F, S v Reeding [2005] ZAWCHC 13; 2005 (2) SACR 631 (C) para 4 of the judgment of Bozalek J, available at http://www.worldlii.org/cgi-bin/disp.pl/za/cases/ZAWCHC/2005/13.html?query=reeding and S v Hassen 1997 (2) SA 253 at 255.

108 See Matrimonial Causes Act 1857, s 31. This provision was substantially reproduced in subsequent legislation: eg Matrimonial Causes Act 1950, s 4. ‘The doctrine of connivance… goes back long before the Matrimonial Causes Act, 1857, to the days of the ecclesiastical courts’: Rumbelow v Rumbelow [1965] P 207 at 219.

109 Woodbury v Woodbury [1949] P 154 at 165.

110 [1951] P 85 at 98.

111 Eg Manning v Manning; Fellows v Fellows [1950] 1 All ER 602.

112 Eg Allen v Allen (1859) 30 LJP 2.

113 McGhee, J et.al (eds) Snell's Equity (London: Sweet & Maxwell, 31st edn, 2005) p 99.Google Scholar

114 Dering v Earl of Winchelsea (1787) 1 Cox Eq 318 at 319–320.

115 Pomeroy, Jn A Treatise on Equity Jurisprudence as Administered in the United States of America [Spencer W Symons (ed)] vol 2 (San Francisco: Bancroft-Whitney, 5th edn, 1941) at §399.Google Scholar

116 Cf Duff, above n 74, p 188.

117 Eg R v Hardwicke [2001] Crim LR 220 at [22] of the judgment; Shannon v United Kingdom [2005] Crim LR 133; Council for the Regulation of Health Care Professionals v General Medical Council and Saluja [2007] 1 WLR 3094 (in the last case, at [81], the court did not rule out that the conduct of a non-state agent might be so serious that admission of his evidence would compromise the integrity of the court). K Hofmeyr ‘The problem of private entrapment’[2006] Crim LR 319 at 336 contends, for different reasons, that ‘the abuse of process doctrine is inapplicable in cases of private entrapment’. Cf Wong Keng Leong Rayney v Law Society of Singapore, above n 8, paras 65–68; Law Society of Singapore v Tan Guat Neo Phyllis, above n 1, para 47.

118 Eg R v Sang, above n 2, at 446; Sorrells v US (1932) 57 F2d 973 at 976 (4th Cir); Carlon, A ‘Entrapment, punishment, and the sadistic state’ (2007) 97 Virginia Law Review 1081 at 1082–1083.Google Scholar

119 My thanks to Michael Furmston for this point.

120 See, eg, US v Hollingsworth, above n 58, at 1203 per Chief Judge Richard A Posner, sitting in the US Court of Appeals for the Seventh Circuit: ‘There is no defense of private entrapment… A person hired to commit a crime cannot defend on the ground that the hirer offered him so much money that it broke down his resistance’.

121 See R (Dacre and Another) v Westminster Magistrates' Court [2009] 1 Cr App R 6 at [31] and [32].

122 Council for the Regulation of Health Care Professionals v GMC, above n 117, at [83].

123 R v Mack, above n 5, at 540.

124 Ibid, at 542.

125 R v Looseley, above n 4, at [40].

126 Ibid, at [19].

127 Ibid, at [25].

128 Eg in R v Mack, above n 5, at 565, the Canadian Supreme Court held that the application for a stay should be decided by the judge after a finding of guilt has been made. In England, on the other hand, the issue of abuse of process tends to be heard in advance of the trial: Choo, above n 95, p 168.

129 See, in a different context, Ridgeway v R, above n 3, at 41: ‘the question of unfairness to a particular accused is ordinarily of but peripheral importance in deciding whether evidence of an illegally procured offence should be excluded on public policy grounds’. See also at 38: ‘Ordinarily,… any unfairness to the particular accused will be of no more than peripheral importance’.

130 For examples of executive self-regulation of undercover operations in the US, see The Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations 30 May 2002, available at http://www.usdoj.gov/olp/fbiundercover.pdf (part V deals with ‘Protection of innocent parties against entrapment’), and in the United Kingdom, see Undercover Operations: Code of Practice issued jointly by all UK police authorities and HM Customs and Excise.

131 Bronitt, S and Roche, D ‘between rhetoric and reality: sociolegal and republican perspectives on entrapment’ (2000) 4 International J of Evidence and Proof 77 at 99Google Scholar argue that ‘reliance on judicial pronouncements to regulate policing practices has limitations’ and recommend a comprehensive ‘statutory regime regulating entrapment’ (at 105). Friedland, above n 11, at 20 and 30, also prefers a legislative solution to a judicial one. For an example of legislative regulation of investigatory operations in England, see Regulation of Investigatory Powers Act 2000, and the code of practice issued thereunder. For Australian examples, see Marcus, P and Waye, V ‘Australia and the United States: two common criminal justice systems uncommonly at odds’ (2004) 12 Tulane J of International and Comparative Law 27 at 75–78Google Scholar and for a critical review of legislation regulating covert police operations in Australia and Canada, see Bronitt, above n 39.

132 Seidman, above n 83, at 143–144.

133 Ridgeway v R, above n 3, at 90–91 per McHugh J.

134 See Panday v Virgil, above n 95, at [34]: entrapment is an issue that ‘should properly be resolved within the criminal process itself rather than by way of a judicial review challenge’.

135 Cf Ridgeway v R, above n 3, at 32–33.

136 Contrast Ormerod and Roberts, above n 39, at 56: ‘The proposal offered here is simply to concentrate not on the characteristic of the individual target but the police, and by doing so emphasise that it is the propriety of the police conduct that should be at the forefront of the inquiry’.

137 On the difficulties of a rights-based justification, see Hofmeyr, above n 117, at 333–334. The US Supreme Court has held that state entrapment does not violate any protected right of the defendant and hence does not attract the due process clause: Hampton v US, above n 45, at 490–491 and US v Russell, above n 14, at 430.