M, R v

An undercover police officer may create an opportunity for an offence without thereby entrapping the person who takes it. The decisive question is whether police conduct was so seriously improper that allowing the prosecution to continue would bring the administration of justice into disrepute.

Infiltrating a suspect’s confidence and asking an open-ended question will not ordinarily amount to entrapment. Impropriety generally requires pressure, persuasion, persistent overtures, or a significant inducement, assessed in light of any vulnerability of the suspect.

M faced trial in the Crown Court at Burnley for being concerned in supplying diamorphine. He sought a stay for abuse of process, alleging that an undercover officer, JC, had entrapped him.

The Recorder determined the application on written prosecution material and stayed the indictment. The prosecution appealed under section 58 of the Criminal Justice Act 2003.

On the assumed facts, JC had established a relationship with M during a legitimate covert operation and asked where drugs could be obtained. M then obtained and passed drugs to JC. The central issue was whether that conduct amounted to improper entrapment.

1. Appeal allowed. The stay was set aside and the proceedings were ordered to resume in the Crown Court.

2. The governing principles were those in Loosely [2001] UKHL 53. The question is whether the conduct of the police or other enforcement agency was so seriously improper that it would bring the administration of justice into disrepute. Although police participation in crime may be permissible, its nature and extent must be examined.

3. A distinction must be drawn between providing an opportunity to commit an offence and inducing its commission. Pressure, persuasion, forceful or persistent overtures, or a significant inducement may show improper entrapment. The significance of an inducement is assessed with regard to the defendant’s circumstances, including vulnerability.

4. On the assumed facts, JC had not asked M himself to supply drugs. He had asked where drugs could be obtained. JC used no pressure or persuasion and offered no inducement to commit the offence. The fact that an undercover officer had gained M’s confidence was inherent in such an operation and did not alter that conclusion.

5. There was no significant distinction from Loosely. M had been given an opportunity, rather than improperly induced, to obtain drugs for JC. It was therefore not open to the Recorder to find entrapment sufficient to make the prosecution an abuse of process.

6. The decision rested on the assumed written facts. If materially different evidence emerged at trial, including evidence of pressure to supply drugs, the issue might require review. The court also observed that the matters raised by M could be relevant to sentence if he pleaded guilty or were convicted.

• Court of Appeal (Criminal Division): allowed the prosecution’s appeal under section 58 of the Criminal Justice Act 2003, set aside the stay, and ordered the proceedings to resume.
• Crown Court at Burnley: the Recorder had stayed the prosecution as an abuse of process on the written material before him. No citation was stated.