Moon, R. v

An entrapment claim requires an overall assessment of whether State agents created crime by luring the defendant into offending, rather than merely providing an opportunity which the defendant would otherwise have taken. Relevant matters include the defendant’s predisposition, the officer’s persistence, the basis and supervision for the operation, and compliance with safeguards for authorisation.

Reasonable grounds to investigate drug dealing at a location, and the general need for undercover policing, do not justify prosecuting an addict with no evidence of dealing or willingness to supply others where the police caused the isolated supply. In those circumstances the prosecution is unfair and should be stayed as an abuse of process.

The appellant, a heroin addict, supplied a small quantity of heroin to an undercover police officer after the officer approached her at Cambridge bus station. She pleaded guilty to a separate count of possession for personal use, but denied possession with intent to supply arising from the test purchase.

At a voir dire in the Crown Court at Luton, the Crown accepted that she was an addict only, not a dealer or a dealer’s runner. The Recorder refused to stay count 1 for abuse of process. The appellant then changed her plea and was sentenced.

On appeal, the central issue was whether the operation amounted to entrapment and whether the prosecution for the supply count should have been stayed.

1. Appeal allowed. The court quashed the conviction on count 1 because the Recorder should have stayed that prosecution as an abuse of process. The conviction and sentence on count 2, possession for personal use, remained.

2. The court applied the entrapment principles in R v Loosely: Attorney-General’s Reference No 3 of 2000 [2001] UKHL 53. The decisive question was whether the officer caused a crime which would not otherwise have occurred, or merely provided an opportunity for a crime the defendant would otherwise have committed. The assessment is contextual. Predisposition, the nature of the offence, the police purpose, reasonable grounds for suspicion, supervision and the degree of persistence may all matter.

3. The Recorder’s conclusion that the appellant would have supplied any of numerous heroin-dependent customers could not stand with the Crown’s acceptance that she was an addict only. There was no evidence that she had previously dealt drugs, acted as a runner, or would supply a would-be purchaser generally. Her antecedents, the later search of her home, and her unrepresented police interview supported that conclusion.

4. The officer initiated the approach and was persistent. The appellant was initially rebuffed and had said that she was not to be approached again for drugs. The operation also lacked proper authorisation under the applicable Code of Practice, and the inadequate recording did not supply an effective safeguard. These features showed that this was not merely an opportunity to offend.

5. The police had bona fide grounds to investigate drug dealing at the bus station, and undercover work may be necessary to detect street dealing. Those considerations did not outweigh the absence of any predisposition by this appellant and the fact that the police had created the isolated supply offence. It was unfair for the State to prosecute her for it.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction for possession with intent to supply.
• Crown Court at Luton: Following a voir dire, the Recorder refused to stay the count of possession with intent to supply for abuse of process. The appellant then pleaded guilty to that count. She had already pleaded guilty to the separate possession count.