East Riding of Yorkshire Council v Dearlove

In an entrapment or abuse-of-process challenge, law-enforcement officers may provide an unexceptional opportunity to commit an offence. The question is whether their conduct went beyond what an ordinary member of the public might have done in the circumstances and thereby created the crime artificially. A prior absence of evidence of offending, or the absence of reasonable grounds to believe that offending was already occurring, does not necessarily prevent a test purchase. The court must assess the operation in its wider context, including the nature of the service advertised, the defendant’s circumstances, any warning given, and the public interest in enforcement. A telephone booking may be equivalent to flagging down a taxi where that is the ordinary method of obtaining the service.

The Council appealed by way of case stated against the justices’ decision to stay its prosecution of Mr Dearlove for unlicensed private-hire activity, selling alcohol from a vehicle without the required authorisation, and using a vehicle as a private-hire vehicle without a current licence. The justices considered that the Council’s test purchase, made after a single advertisement and correspondence in which Mr Dearlove said that he had no business, amounted to excessive conduct and virtue testing. They distinguished Nottingham City Council v Amin. The central issues were whether the officers had provided only an opportunity to offend, whether reasonable grounds for suspicion were required, and whether the telephone booking was materially different from flagging down a taxi.

1. Appeal allowed. The justices erred in law by staying the prosecution on the ground of abuse of process. Their decision was quashed and the case was remitted for substantive consideration of the charges.
2. The governing principles were those in Attorney General’s Reference No 3 of 2000, R v Loosely. Officers may engage in test purchases and other proactive investigation. The relevant boundary is whether they did no more than present an unexceptional opportunity to commit an offence, judged generally by what an ordinary member of the public might have done in the circumstances.
3. The court must consider the wider context. Relevant matters included the service advertised, the nature and extent of the officers’ participation, the defendant’s circumstances and vulnerability, the warning previously given, and the public interest in enforcing licensing laws.
4. The officers booked the advertised executive transport service in the ordinary way. A telephone booking was equivalent, in this context, to flagging down a taxi as in Nottingham City Council v Amin. The journey, price and inclusion of sparkling wine were not so exceptional as to amount to inducement or virtue testing.
5. The advertisement supplied reasonable grounds for suspicion, but a test purchase would have been permissible even without reasonable grounds for believing that criminal activity was already taking place. The absence of evidence of other offending affected neither the admissibility of the evidence nor the propriety of the prosecution. If there had been only one offence, that circumstance could be reflected in sentence.
6. It was not reasonably open to the justices to conclude that the officers’ conduct made the prosecution unfair or abusive. No separate answer to questions 2 and 3 was required.

• High Court (Administrative Court): The appeal by case stated was allowed. The justices’ stay was quashed and the case was remitted for substantive consideration.