#5812 - Defences Entrapment - Irish Criminal Law

Entrapment

Sherman v US (US SC 1958)

Facts

The plaintiff was charged with selling drugs, after an agent of the Government induced the sale, in the face of obvious reluctance on the part of the plaintiff.

Issue

Judgment

Warren CJ (leading)
Entrapment occurs where criminal conduct is the product of the creative activity of agents of law enforcement – i.e. they implant the idea of and induce the commission of crime as opposed to merely providing facilities or opportunities for it.
The defence of entrapment protects the unwary innocent but not the unwary criminal.
In the circumstances of this case, the accused should be able to avail of the defence.
Frankfurter J (concurring)
The defence of entrapment is grounded in the courts' refusal to countenance the kind of behaviour exhibited by law enforcement in such a case.

R v Sang (HoL 1979)

Facts

Two defendants were convicted of conspiracy to forge banknotes and of being in unlawful possession of forged notes.
In their defence they submitted that they had committed the crime at the inducement of an agent provovateur.

Issue

Judgment

Lord Diplock (concurring)
Save with regard to admissions and confession and generally with regard to evidence obtained from the accused after commission of the offence, the court has no discretion to refuse to admit relevant evidence on the grounds that it was obtained by improper or unfair means – this includes evidence obtained by means of an agent provocateur.
Many crimes are committed at the instigation of others, the identity of the instigator is irrelevant – once the mens rea and actus reus exist, a crime has been committed.
Viscount Dilhorne (concurring)
Entrapment is not a defence in English law.
Lord Salmon (concurring)
Lord Fraser of Tullybelton (concurring)
Lord Scarman (concurring)

Dental Board v O'Callaghan (HC 1969)

Facts

The complainant board were authorised to prosecute crimes under the Dentists Act 1926.
They brought proceedings against the defendant, on the basis of evidence that he had operated on the complainants' agent who had acted as an agent provocateur.

Issue

Judgment (Butler J)

The complainant Board, having been authorised to prosecute under the Act, had also been impliedly authorised to prevent and detect the commission of offences.
The witness' evidence, being expressly authorised by the complainants to obtain proof of the commission of offences, should not be treated as requiring corroboration, even if he did act as an agent provocateur.
Accomplice evidence normally requires corroboration because of the likelihood of an accomplice acting in his own self interest – such a concern does not arise in this case.
It is proper for the courts to ensure that evidence obtained by an agent provocateur is only used when necessary.

People v Van Onzen (CCA 1995)

Facts

The defendants had been caught with a large quantity of cannabis resin aboard their boat, after a Garda convinced them over the phone that he was their contact.
They tried to rely on the defence of entrapment.

Issue

Judgment (O'Flaherty J)

The offence was committed when the defendants entered Irish territorial waters – there was no evidence that they were contracted by the Garda at any time other than when they were in Irish waters, nor could anything he said constitute entrapment.

de Castro v Portugal (EctHR 1998)

Facts

The applicant complained that he had been deprived of a fair trial due to his conviction being based mainly on the statements of two police officers who had incited commission of the offence.

Issue

Judgment

While the rise in organised crime requires the use of appropriate measures, the right to the fair administration of justice cannot be sacrificed for the sake of expedience – the public interest cannot justify the use of evidence obtained as the result of police incitement.
The issue is whether the witnesses in this case went beyond acting as undercover agents – in light of the fact A) that the investigation was not ordered or supervised by a judge, B) that the applicant was not previously known to the authorities and C) had acquired the drugs specifically to give to the officers, this is a case of entrapment.
The police, in instigating an offence which would not have happened without their intervention, deprived the applicant of a fair trial.

R v Loosely (HoL 2001)

Facts

The accused sought to rely on entrapment as a defence to being charged with possessing drugs with intent to supply.

Issue

Judgment

Lord Nicholls of Birkenhead (concurring)
Entrapment is not a substantive defence to criminal proceedings, but where the court is satisfied that it has occurred, it can grant a stay of proceedings or rule the evidence inadmissible.
A prosecution based on entrapment is an abuse of process, and a stay of prosecution is on principle most likely to be the appropriate response
In determining whether the actions of law enforcement constitute entrapment the test is whether the behaviour is so seriously improper as to bring the administration of justice into disrepute – of particular relevance is the A) nature of the offence (whether it requires proactive techniques to detect), B) the reason for the particular police operation and C) the nature and extent of police participation in the crime.
Predisposition towards committing a crime is an inherently speculative and not very useful ground for deciding whether the defence is available – in addition, even those with such a predisposition can be entrapped.
Lord Mackay of Clashfern (concurring)
Lord Hoffman (concurring)
In most cases, the case can be disposed of by asking whether the police behaved as ordinary members of the public in their investigation i.e. did not hold out extra inducements or threats.
Adequate supervision and reasonable suspicion (not necessarily attaching to any particular individual) are also important factors.
The fact that an offence is serious is not justification per se, but the...

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