Edwards, R (on the application of) v Criminal Cases Review Commission

Entrapment is not a substantive defence to a criminal charge. It may nevertheless justify a stay or other response for abuse of process where state agents improperly brought about the offence. The Criminal Cases Review Commission is required to investigate an alleged entrapment only where there is an evidential basis capable of supporting it. Mere speculation, suspicious associations or an inconsistent defence do not require further investigation. Judicial review of a Commission decision asks whether its reasons disclose a significant reviewable defect. The court will not determine wider questions about running entrapment alongside a substantive defence unless appropriate facts arise.

The claimant sought judicial review of the Criminal Cases Review Commission’s decision not to refer his conviction for possessing diamorphine with intent to supply to the Court of Appeal under section 9 of the Criminal Appeal Act 1995. His conviction had been upheld by the Court of Appeal (Criminal Division) on 18 July 1996.

He argued that the Commission had wrongly treated his positive case that he was unaware of the drugs as precluding an allegation of entrapment. The central issue was whether the Commission had been required to investigate entrapment further and whether its decision not to refer was unlawful.

1. Application refused. The Commission was justified in declining to refer the conviction to the Court of Appeal (Criminal Division).
2. Judicial review of a Commission decision is governed by the question stated in R v Criminal Cases Review Commission, Ex parte Pearson: whether the Commission’s reasons disclose, to a significant extent, a defect warranting intervention by a reviewing court. The relevant question lay within the Commission’s entrusted area of judgment.
3. Entrapment is not a defence to the offence. Under the abuse of process jurisdiction, however, the court may prevent a prosecution where state agents have improperly brought about the commission of the offence. The principle stated in R v Looseley was applied. The focus is on improper state involvement, not merely on the defendant’s culpability.
4. The Commission may have a duty to investigate an allegation of entrapment, but only where there is some evidential basis for it. The available material contained no evidence that the undercover officer induced the claimant to commit the offence or organised the operation. The associations of other participants with corrupt police officers did not establish that the transaction had been arranged by state agents. Further investigation would have been wholly speculative.
5. The wider question whether a defendant may run entrapment alongside a substantive defence, and the procedure where the accounts are inconsistent, was left for a case presenting appropriate facts. The discussion of R v Ahluwalia, R v Neaven, Mathews v United Stated and R v Mack was therefore not necessary to the decision.
6. The claim was refused.

• Court of Appeal (Criminal Division): the claimant’s appeal against conviction was dismissed on 18 July 1996.
• High Court (Administrative Court): the application for judicial review of the Commission’s refusal to refer the conviction was refused.