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Criminal Law Defences Entrapment Notes

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ENTRAPMENT

Modern crime had made entrapment a big issue
Modern crime is very difficult to investigate without entrapment
Very few drug users are going to make a complaint to a Garda about their drug dealer
If you look at weapon dealers, there is no immediate victim - the people buying them are not going to tell on the dealer as they could be mid-planning and for other obvious reasons.
Not hugely clear what entrapment is - is it a defence? Is it an abuse of process?
More of an argument that the State are abusing process - to allow the State to behave in this way is unjust. Traditionally and historically not a defence like the others.

Distinction:

1. To go and catch a criminal in a scenario that was going to happen anyway

2. To create a situation where the crime would not have happened had an authority not forced or coerced them to commit it.

➢ Scenario 2 is caused virtue testing - creating a crime by coercion with no prior intent of committing a crime - seducing and tempting.

• Virtue test is more an experiment to test morality and is regarded generally as unfair. The prosecution is a waste of time and is not achieving anything.

• So, the law says, a bit like obtaining a search warrant, thatIf I have reasonable grounds to suspect that a specific crime Is going to be committed.
It is an objective and unbiased suspicion. '
If there is a scenario created, targeting a person subjectively…it is an abuse of process

European Court of HR
Khan v UKStrasbourg isn't normally concerned with any one piece of evidence and its admissibility

Our concern is article 6 of the convention andDid you get a fair trial, was this a fair process is what the approach is for entrapment.

Leading ECHR case:

Teixeira de Castro v Portugal (1999)
Two Portuguese police officers were undercover. They went after someone who they had no prior reason to believe they were a dealer, and the officers, with no reasonable grounds at all: said can you get a kilogram of cocaine. The guy didn't himself but said he could get it from connections. Then convicted of possessionThis conviction was not a fair process
Must have a reasonable basis directly relevant to the crime you are trying to coerce the
A to commit.
Mere persuasion. Edwards UK
Strasbourg is very concerned with procedure and fair opportunity in trials.Conviction unfair because the defence were not given specific disclosure by prosecution to enable them to understand what happened
Not so concerned about what you do, but very concerned about visibility on what people know in relation to a case

Ramanauskas v. Lithuania (no. 2) 2018Was the investigation essentially passive?
You must be essentially passive in entrapping someone
Were there objective suspicions either that A was:

1. Involved in the crime

2. Likely going to be involved in the crime.Must be a clear and foreseeable procedure in these situations
Must be subject to judicial procedure.

In Ireland, you don't need permission to conduct undercover operations. Judicially independent.

The law in Ireland
O'callaghan v The Dental Board 1969
Dental board monitored false teeth and among other things, the fitting of dentures and repair. At this time, only dentists could do this as it is a very necessarily hygienic matter. This case concerned unqualified dentists doing this. Dental board did an undercover operation. Sent one of their finest operatives into action, asks him to repair fixed dentures and the unqualified dentist said yes.
Charged w offering to repair dentures unqualified. He raised entrapment:
➢ Not a real customer or a real situation
The court was very distasteful towards entrapment. Why do you have to sneak around - you shouldn't break the rule of law.
Butler J in HCEntrapment should only be allowed when absolutely necessary

Not nice and fair. This is before the explosion of drug intake etc. now the courts would never say the sameNecessary here as there is no other reasonable or conceivable way to test this.

Why isn't this virtue testing?Regulated area where there are check-ups etc. more of a standard thing and you can check them on an ad-hoc basis.
When it comes to real crime, a specific reason is much more necessary

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