Palmer & Ors v R

An undercover operation does not amount to entrapment merely because police officers provide an opportunity to offend. A stay for abuse of process requires conduct by state agents which improperly lures a person into criminality, so that prosecution would compromise the integrity of the criminal justice system.

The assessment is contextual. It includes the operation’s necessity, proportionality, authorisation, supervision and the extent to which officers induced, rather than detected, offending. Properly monitored covert activity directed at serious acquisitive crime may remain legitimate even where officers trade with persons who voluntarily bring property to them.

A disclosure failure will not render convictions unsafe where the withheld material could neither assist the defence nor undermine the prosecution.

The appellants pleaded guilty at Wood Green Crown Court to offences of dishonesty arising from sales of identity documents and other property to undercover police officers at a shop established under Operation Gemini. The operation sought to prevent and detect residential burglary and other acquisitive crime in Barnet.

After a voir dire, the trial judge rejected applications to stay the proceedings for abuse of process based on disclosure failures and alleged entrapment. Palmer and Cooke applied for leave to appeal against conviction. Gyamfi sought an extension of time and leave to appeal. They also relied on proposed fresh evidence from a former undercover officer who had briefly worked on the operation.

The common issues were disclosure, entrapment and the admissibility and significance of the proposed fresh evidence.

1. The court granted Gyamfi an extension of time but refused all three applications for leave to appeal against conviction. The convictions were safe.

2. The proposed evidence of the former undercover officer was refused under section 23 of the Criminal Appeal Act 1968. His involvement was brief, he had no dealings with the appellants, and his evidence was exaggerated, unreliable and unhelpful. The recordings of the operation were the best available evidence.

3. The Crown accepted that redacted authorisation documents could and should have been disclosed once their lawfulness was challenged. That failure had caused no material consequence. The trial judge and senior counsel had considered the material, and there was nothing capable of assisting the defence or undermining the prosecution. Nor was there a duty to identify an undercover officer who had no relevant dealings with the appellants.

4. Applying R v Looseley A.G. Ref (No. 3 of 2000) [2002] 1 Cr.App.R.29, entrapment was not a substantive defence. The question was whether state conduct had improperly caused the appellants to transgress so that continuing the prosecution would compromise the integrity of the criminal justice system. Police officers need not remain passive, and the mere provision of an opportunity to commit crime did not establish a breach of article 6.

5. Operation Gemini was necessary and proportionate under the Regulation of Investigatory Powers Act 2000. Residential burglary was prevalent, conventional methods had not succeeded, the operation had legitimate aims, and it was authorised, monitored and supervised. The appellants voluntarily exploited the shop’s opportunity to trade property. Their conduct was not induced by vulnerability, inducement or improper pressure. The isolated references to firearms made to Palmer fell short of encouragement, were not pursued, and were unrelated to his charges.

6. There was therefore no police misconduct approaching an affront to justice and no abuse of process.

• Court of Appeal (Criminal Division) — in [2014] EWCA Crim 1681, granted Gyamfi an extension of time and refused the applications for leave to appeal against conviction.

• Wood Green Crown Court — His Honour Judge Pawlak rejected the abuse-of-process applications. The appellants then pleaded guilty and were sentenced on 23 April 2013.