Ali Syed, R. v

Entrapment concerns abuse of state power and the integrity of the criminal justice system. Undercover agents may provide an unexceptional opportunity to commit crime, but may not induce or create offending in order to prosecute it. The inquiry is fact-specific and must balance the need to combat serious crime with the need to prevent abusive state conduct.

The common-law approach in R v Looseley is compliant with Article 6. Reasonable suspicion may arise from a suspect’s first communication in a bona fide operation; it need not pre-date the operation or attach to an identified individual. A potential difference about the burden of proof need not be resolved where the allegation of incitement is unarguable and the evidence establishes that agents did not induce the offence.

The applicant pleaded guilty at the Central Criminal Court to preparing terrorist acts contrary to section 5(1) of the Terrorism Act 2006. He had communicated online and met with Security Service role players posing as violent jihadists. The prosecution case was that he sought weapons and a bomb, raised funds, and researched targets for an attack.

Before his plea, HHJ Topolski QC refused applications to exclude the undercover material and to stay the proceedings for entrapment. The applicant contended that subsequent Strasbourg jurisprudence required a materially different approach from domestic law and that the operation had incited him. The central issue was whether the role players had gone beyond offering an unexceptional opportunity to commit the offence, and whether Article 6 required a different result.

1. The application for leave to appeal was refused. The guilty plea did not bar an appeal founded on an alleged category 2 abuse of process, because a conviction is unsafe if the prosecution should never have been brought. It did not, however, compel the plea in relation to the separate application to exclude evidence under section 78.

2. The Court followed R v Looseley [2001] UKHL 53. The domestic doctrine and the Strasbourg approach under Article 6 share the same rationale: state agents must not instigate crime in order to punish it, but properly controlled undercover techniques remain essential in combating serious crime. The description of agents acting in an essentially passive manner does not require them to be passive observers. It permits responsive conduct and operational steps necessary to investigate crime.

3. The decisive inquiry was whether the role players had done more than provide an unexceptional opportunity. Reasonable suspicion need not exist against a previously identified person where a bona fide investigation concerns an activity or electronic location. On the disclosed material, reasonable suspicion arose when the applicant first contacted a person he believed supported terrorist violence and revealed that he already had an attack in mind.

4. The role players did not induce the offending. The applicant generally initiated and resumed contact, pursued weapons and explosives, identified methods and targets, sought finance, and pressed for progress. The agents remained responsive and essentially passive. Their proposal of a meeting was a necessary operational step, not incitement. The operation was authorised and supervised without challenge below, proportionate to the gravity of the suspected offending, and supported by reliable communications material.

5. The Court confirmed that the disclosure regime under the Criminal Procedure and Investigations Act 1996, including the continuing duty of disclosure, provides an Article 6 safeguard. No undisclosed material was relied on by the prosecution to answer the entrapment allegation. The Court left unresolved any general difference between domestic and Strasbourg law concerning the burden of proof, because the allegation was not arguable and, in any event, the evidence showed no inducement.

• Court of Appeal (Criminal Division). Refused leave to appeal against conviction in [2018] EWCA Crim 2809.

• Central Criminal Court. HHJ Topolski QC refused applications to stay the proceedings for abuse of process and to exclude undercover evidence on 12 April 2017. The applicant then pleaded guilty and was sentenced to life imprisonment with a minimum term of 16 years and 6 months.