The events of the last week remind me of a case we had many years ago where the firm represented the licensee of a North Yorkshire Pub who was being prosecuted for serving after “time”. Most readers will recall that before the 2003 Licensing Act standard closing hours applied to all pubs in England and Wales with last orders at 10.30pm followed by ten minutes drinking up time and everyone out by 11. Unfortunately for our client, he was caught pulling a couple of halves after the final bell and the police prosecuted him for it. Straightforward enough you may think except on this occasion the “customers” were undercover police officers who over a number of weeks had cynically ingratiated themselves to the landlord with the specific purpose of catching him out. Was it fair to bring a prosecution on the evidence of an agent provocateur? The client didn’t think it was and the magistrates agreed because although they convicted our man after a trial, they passed a nominal sentence suggesting that while the law had technically been broken, the case should never have reached court.
With ‘stings’ and ‘entrapment’ on everyone’s lips at the moment it is perhaps fitting to consider the place of evidence obtained by agent provocateurs in the courts today. The leading case is the House of Lords decision in R v Loosely which makes it clear that while entrapment is not a defence to a criminal prosecution, a stay of proceedings (i.e. a permanent suspension) is appropriate if the conduct of the prosecuting authority was so seriously improper that it would bring the justice system into disrepute if the case was allowed to continue. The Attorney General went further introducing specific guidelines so that when deciding whether a stay is appropriate, the court will consider the following :
- Whether the police acted in good faith
Whether the police had good reason to suspect the accused of criminal activities
- Whether the police suspected that crime was particularly prevalent in the area in which the investigation took place
- Whether the entrapment technique was necessary because of the secrecy and difficulty of detection of the criminal activity in question
- The defendant’s circumstances and vulnerability; and
- The nature of the offence
It has long been acceptable for the police and local authorities to conduct test purchases (tobacco, alcohol, fireworks etc.) or pose as passengers to catch unlicensed taxi drivers. However, there is a difference between indiscriminate test purchases and actual entrapment where in the latter situation a person is enthusiastically encouraged by someone in authority to commit a crime. In such cases the trial judge will frequently exclude the prosecution evidence as being unfair or the proceedings may even be discontinued altogether. While the current high profile “stings” do not suggest any criminal conduct, it is an interesting if academic exercise to look at some of the undercover operations featuring in the news and apply the guidelines in R v Loosely. You are the Judge. What do you think? Was it fair?
An interesting footnote to the excitement of the last week is the inability of high profile casualties to prevent the media from publishing details of the alleged skulduggery. In a world where perception is everything, the first concern of the stung is often not so much about the story but whether they can suppress the media and protect their reputation. Now in these situations the courts approach is interesting because while they recognise that everyone is entitled to a private life, things may be different for prominent national figures that hold or have held senior positions of responsibility because these people fall into a bracket of society from whom the public might reasonably expect a higher level of behaviour. The fact that they were caught in a sting is irrelevant. When it comes to silencing the press it is entirely a question of balancing the individual’s right to privacy against what the public are entitled to know although the trend seems to be that the more illustrious the casualty, the less likely they will secure a gagging order.
How did Bob Geldof put it? The words still ring down after nearly 40 years.
It’s a Rat Trap. And you’ve been caught.
AUTHOR : Simon Catterall, Head of Regulatory and Safety