Looseley, R v.

The House of Lords confirmed that entrapment is not a substantive defence: a person who has committed the actus reus with the requisite mens rea cannot rely on entrapment to negate guilt. However, English law provides two remedies where law-enforcement conduct is objectionable: exclusion of evidence under section 78 of the Police and Criminal Evidence Act 1984 and a stay of proceedings as an abuse of process. The appropriate remedy depends on whether the police merely offered an unexceptional opportunity (permissible) or whether their conduct went further and caused or instigated the offence (state-created crime), thereby threatening the integrity of the administration of justice.

The court set out factors relevant to that assessment, including the nature and seriousness of the offence, reason for the operation, degree and persistence of police participation, supervision and authorisation of undercover activity, vulnerability or predisposition of the accused, and proportionality. The House held that these English principles are compatible with Article 6 of the European Convention on Human Rights as expounded in Teixeira de Castro v Portugal and need no substantive modification.

This is a consolidated hearing of two matters: the appeal by Grant Spencer Looseley against conviction for supplying heroin following authorised undercover purchases, and Attorney-General's Reference No. 3 of 2000 arising from an acquittal where the trial judge had stayed proceedings on grounds of entrapment. Both matters were before the House on certified points from the Court of Appeal.

(i) Nature of the applications:

• Looseley sought to exclude the evidence of an undercover officer or to have the indictment stayed on the ground that the officer's active role amounted to entrapment.
• The Attorney-General's reference asked whether English law (s78 PACE and the abuse of process jurisdiction) needed modification in light of Article 6 ECHR and Strasbourg jurisprudence.

(ii) Issues framed:

• Whether entrapment constitutes a substantive defence;
• Whether the court should stay proceedings or exclude evidence where undercover officers have induced an offence;
• How to distinguish impermissible state-created crime from permissible provision of opportunity; and
• Whether English law is compatible with Article 6 ECHR (notably Teixeira de Castro).

(iii) Reasoning and conclusions:

The House reiterated that entrapment does not negate guilt but identified and endorsed two judicial responses: exclusion under section 78 PACE where admission would adversely affect fairness, and normally the more principled remedy of a stay of proceedings where police conduct has so tainted prosecution that allowing it would be an affront to the public conscience. The court developed a multi-factorial test focusing on whether police conduct went beyond presenting an opportunity and instead caused the offence, taking into account authorisation, supervision, reasonable suspicion, persistence, inducements, the accused's vulnerability, and proportionality. The House concluded that English law, so applied, is consistent with Article 6 and the Strasbourg case-law; it dismissed Looseley's appeal and answered the certified questions in the Attorney-General's reference accordingly (finding that judges remain able to stay proceedings where entrapment of the requisite kind is established, and that no modification to the domestic tests was required).

Appeal dismissed as to Looseley; the House held that entrapment is not a substantive defence but that courts have power to exclude evidence under section 78 PACE 1984 and to stay proceedings as an abuse of process where police conduct has caused or instigated the offence. The court set out factors to distinguish permissible undercover opportunity from impermissible state-created crime and held that English law so understood is compatible with Article 6 ECHR.

On appeal from the Court of Appeal (Criminal Division) to the House of Lords. The matter included an Attorney-General's reference pursuant to section 36 of the Criminal Justice Act 1972. The House answered certified questions from the Court of Appeal and gave final appellate determination in [2001] UKHL 53.