TL, R. v

The entrapment jurisdiction developed in R v Looseley applies to seriously improper conduct by state agents. It cannot be applied without modification to private citizens who gather evidence of crime.

Private conduct may exceptionally justify a stay for abuse of process, but only where the misconduct is so grave that the state’s reliance on its product would compromise the integrity of the court. In the absence of state impropriety, that threshold will rarely be met. Conduct which gives no more than an unexceptional opportunity to commit an offence, without inducing it, does not justify a stay.

The respondent was indicted at Nottingham Crown Court for attempting to meet a child following sexual grooming, contrary to section 1(1) of the Criminal Attempts Act 1981. Messages sent from his telephone arranged sexual contact with a person represented as a 14-year-old girl.

That person was in fact Mr U, an adult member of a private group seeking to expose suspected child-sex offenders. Before trial, the judge stayed the indictment as an abuse of process. He treated the group’s proactive conduct as subject to the common-law entrapment principle applicable to police operations.

The prosecutor appealed the terminating ruling. The central issue was whether conduct by a non-state actor could justify a stay on the facts of the case.

1. Appeal allowed. The court granted the prosecutor leave to appeal, set aside the stay and ordered a new trial.

2. The judge applied the wrong test. The entrapment jurisdiction explained in R v Looseley [2001] UKHL 53 is founded on the court’s refusal to permit misuse of state power by police or other state agents. Its purpose is to prevent the court from sanctioning state-created crime. The judge wrongly treated the actions of a private citizen in precisely the same way as those of a police officer.

3. Private misconduct can in principle found a stay on the second abuse-of-process ground. The question is whether the misconduct is sufficiently gross that state reliance on the resulting evidence would compromise the court’s integrity, make the prosecution deeply offensive to ordinary fairness, affront the public conscience, or bring the administration of justice into disrepute. Since no state impropriety is involved, such cases will be very rare.

4. A useful starting point is whether the same or similar conduct by police would justify a stay, while recognising that state investigators are subject to oversight and codes of conduct. Here, even if police lacked prior suspicion of this particular respondent, intelligence suggesting criminal use of the site could justify an investigation. Similar police conduct would have provided an unexceptional opportunity rather than induced an offence.

5. Mr U did not induce the offence. Although the profile registration stated an adult age, the communications immediately and consistently represented the proposed participant as 14 and sexually inexperienced. The user of the respondent’s telephone initiated and drove the sexual arrangements. Mr U did not badger, lead or encourage that conduct. His actions therefore did not render the prosecution an abuse of process.

• Court of Appeal (Criminal Division) — granted the prosecutor leave to appeal, allowed the appeal from the terminating ruling and ordered a new trial: [2018] EWCA Crim 1821.
• Crown Court at Nottingham — His Honour Judge Sampson stayed the indictment as an abuse of process on 8 May 2018.