Regina v. Looseley (Criminal)

Entrapment is not a substantive defence. Where law-enforcement officers have created crime by conduct so seriously improper that prosecution would compromise the integrity of justice, the normal remedy is a stay for abuse of process.

The court asks whether officers merely presented an unexceptional opportunity of the kind ordinarily encountered in the relevant criminal activity, or instead caused the offence through exceptional pressure, inducement or stratagem. It considers all the circumstances, including the offence, the purpose and supervision of the operation, reasonable suspicion, the officers’ participation and the accused’s vulnerability. Predisposition is not the governing criterion.

Exclusion under section 78 of the Police and Criminal Evidence Act 1984 concerns forensic trial fairness and is distinct from a stay. Article 6 requires no modification of these principles.

Two matters concerning undercover purchases of heroin were heard together. In the first, Grant Spencer Looseley pleaded guilty after a Crown Court judge refused both a stay for abuse of process and exclusion of the undercover officer’s evidence under section 78 of the Police and Criminal Evidence Act 1984. The Court of Appeal dismissed his appeal.

In the second, a Crown Court judge stayed proceedings against an accused who had procured heroin after undercover officers repeatedly supplied or offered him cut-price contraband cigarettes. The prosecution offered no evidence and he was acquitted. Following an Attorney General’s reference under section 36 of the Criminal Justice Act 1972, the Court of Appeal held that article 6 required no modification of English law but considered the stay erroneous.

The House considered the proper remedy and test for entrapment, the relationship between a stay and section 78, and whether articles 6 and 8 altered the domestic law.

1. Disposition. The House unanimously dismissed Looseley’s appeal and answered the certified question “No”. It also answered the Attorney General’s referred question by holding that article 6 did not modify the domestic principles governing section 78 or a stay for abuse of process. Lord Nicholls, Lord Mackay, Lord Hoffmann and Lord Hutton considered the trial judge entitled to stay the proceedings in the referred case; Lord Scott expressed greater doubt but accepted the answer to the legal question.
2. Nature and remedy of entrapment. Per Lord Nicholls, Lord Hoffmann, Lord Hutton and Lord Scott, entrapment does not negative actus reus or mens rea and is not a substantive defence. The normal response to a prosecution founded on entrapment is a stay, because the issue is whether the state should be permitted to prosecute an offence which its agents created. Exclusion under section 78 of the Police and Criminal Evidence Act 1984 addresses the distinct question whether admitting particular evidence would impair forensic fairness.
3. Governing assessment. Per Lord Nicholls, with the other Law Lords agreeing in substance, the ultimate question is whether law-enforcement conduct was so seriously improper that prosecution would bring the administration of justice into disrepute or affront the public conscience. A useful guide is whether officers did no more than present an unexceptional opportunity, judged against conduct ordinarily expected in the relevant activity. The assessment is fact-sensitive and includes the nature and detectability of the offence; the good-faith purpose, authorisation and supervision of the operation; reasonable grounds for suspicion; the extent and persistence of inducement; and the accused’s vulnerability.
4. Predisposition and police activity. Per Lord Nicholls and Lord Hoffmann, predisposition is neither the criterion nor, by itself, a justification for otherwise improper state conduct. A criminal record matters only where linked to reasonable current suspicion. Nor does article 6 impose a rigid requirement that an undercover officer remain passive. Ordinary deception, persistence or stratagem may be permissible where consistent with what is normally encountered in the criminal activity.
5. Application. Looseley was approached during an authorised and supervised inquiry into suspected Class A drug dealing at a known focal point. The officer acted as an ordinary customer, and Looseley repeatedly supplied heroin without exceptional inducement. The judge properly refused relief. In the referred case, however, the majority considered that repeated offers and supplies of cheap cigarettes induced a person not involved with heroin to procure it as a favour in return. That exceptional inducement entitled the trial judge to stay the prosecution.
6. Convention rights. The domestic approach conformed to article 6 and the Strasbourg jurisprudence. The telephone request to Looseley for drugs did not violate article 8.

1. House of Lords: dismissed Looseley’s appeal and answered the certified question in the negative. On the Attorney General’s reference, it held that domestic entrapment principles required no modification under article 6; a majority also considered the trial judge entitled to stay the prosecution.
2. Court of Appeal (Criminal Division): dismissed Looseley’s appeal. In the Attorney General’s reference, it held that article 6 required no modification but considered the trial judge wrong to stay proceedings. No citation is stated in the judgment.
3. Crown Court: in Looseley’s case, refused a stay and refused exclusion under section 78 of the Police and Criminal Evidence Act 1984, after which Looseley pleaded guilty. In the referred case, stayed the prosecution; after the stay was lifted, the prosecution offered no evidence and not-guilty verdicts were entered.