Why is entrapment an abuse of power

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Number of of Fee Earners. Number of of Fee Earners Click to edit. Office postcode. Office postcode Click to edit. Office postcode No Content This field is required. Public Law. Legal Categories. If a judge rules that entrapment took place, a stay of proceedings is entered, which in this case means a permanent halt to the court proceedings. Although different than an acquittal, also known as a finding of not guilty, it has the same end result of allowing the accused to walk free without a criminal record.

However, if a judge rules that a person wasn't entrapped, they will then register the conviction before moving on to sentencing. Here are some facts about entrapment: What is entrapment? How does entrapment work? What needs to be proven? How often is entrapment argued? What are the results of an entrapment ruling? Related Stories Decision pending on whether police entrapped B. Produce industry warns of potential shortages as supply chain issues mount.

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Top Videos false. Family pays tribute to late Indigenous veteran Philip Favel. Crocodile living in pond of U. This judgment was considered in R.

Abu Hamza [] 1 Cr. In considering that question, it was right for the judge to have regard to his own experience and that of his fellow judges. Adverse publicity cases have significantly increased with the escalation of online news and opinion about cases to be tried although generally, this can be overcome. Where adverse publicity is raised by the defence, the prosecution should work with the Judge and the defence to produce instructions to the jury, as well as reporting restrictions, where necessary.

Failure on the part of the prosecution to comply with its disclosure obligations may amount to an abuse of process. Some of the relevant factors to be taken into account when deciding whether non-disclosure amounts to abuse of process were considered in Salt [] 1 WLR They included:. It is not necessary for the accused to show that there was bad faith on the part of the police. In R v Bloomfield [] 1 Cr. This proposal had been repeated before the judge in his chambers, and the matter had then, at the prosecution's request, been adjourned to another day for no evidence to be offered.

The Court of Appeal stated that allowing the prosecution to go ahead amounted to an abuse of process since, whether or not there was prejudice to the accused, it would bring the administration of justice into disrepute if the Crown were permitted to revoke its original decision, particularly as it had been made in the presence of the judge.

This is the leading case where abuse arguments are raised on the basis of breach of an undertaking not to prosecute. The LCJ stated at paragraph It is by no means easy to define a test for those circumstances other than to say that they must be such as to render the proposed prosecution an affront to justice.

The Court of Appeal's decision in Abu Hamza demonstrated that it is not likely to constitute an abuse of process to proceed with a prosecution unless there has been:. Even then, if facts come to light that were not known when the representation was made, this may justify proceeding with a prosecution despite the representation - Killick [] 1 Cr App R The administration of a caution may lead to a subsequent prosecution being held to be an abuse of process.

The principles of autrefois convict and autrefois acquit are applicable only where there has been a finding by a court of guilt or innocence.

However, the Court went on to say that, where criminal conduct has been the subject of an agreed caution, in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court. Examples of cases where a prosecution might be justified, despite the earlier administration of caution, include instances where information or evidence is obtained subsequent to the caution.

In R Lowden v Chief Constable of Northumbria Police [] EWHC Admin , it was re-iterated that the existence of a simple caution administered by the police or the CPS is not in itself a bar to a private prosecution being brought, but it may be an abuse of process for a private prosecution to be brought if an assurance was given in the course of administering the caution that there would be no prosecution. With respect to conditional cautions where a re-review discloses that the original decision to authorise a conditional caution was wrong, immediate action should be taken to rescind the decision.

Where re-review leads to the decision being rescinded and the conditional caution being set aside in favour of prosecution, this fact should be specifically stated in the CPS response to any originating summons for judicial review. The single judge at the Divisional Court is likely to take into account the steps that have been taken to undo the effect of the erroneous decision when deciding whether permission should be granted for the judicial review to be heard.

Where a conditional caution is given which conflicts with the Director's Guidance on Conditional Cautioning and the Conditional Cautioning Code of Practice, or the Director's Guidance on Youth Conditional Cautioning and the Code of Practice for Youth Conditional Cautions, the conditional caution can in principle be set aside. Each case then falls to be considered on its merits as to whether such a setting aside leads to unfairness or abuse of process.

In R v Gore and Maher [] E. A Crim , the Divisional Court confirmed that where a Fixed Penalty Notice had been issued erroneously it would not be an abuse of process to subsequently prefer charges. In this case, two individuals had each received a fixed penalty notice for public disorder. The following day, the police reviewed the CCTV evidence of the incident and decided that the fixed penalty notices were inappropriate, arrested the two accused and charged them with inflicting grievous bodily harm.

Applications to stay proceedings on the basis this was an abuse of process were refused. In R Gavigan v Enfield Magistrates' Court JP , the accused received fixed penalty notices but, rather than paying the fixed penalty, they indicated that they wished the matter to be dealt with by a court.

The decision was then taken to prosecute them for the offence rather than dealing with the matter as a contested fixed penalty notice. This had the consequence that, if convicted, the accused were liable to a custodial sentence. However, it was held that there is no principle or policy that a person who has rejected the opportunity to pay a fixed penalty should not thereafter be prosecuted for any offence arising out of the same set of facts for those in respect of which the notice was issued.

Unfairness may arise where prosecutors deliberately manipulate court procedures. This was held not to amount to an abuse of process because, on the facts, the conduct of the prosecution showed, at most, a lack of judgment rather than misconduct or bad faith. Furthermore, there was no prejudice to the defendant because the justices would probably have committed the case to the Crown Court anyway, and in the event of conviction the judge would take account of the defendant's age at the time of the offence and the circumstances of his committal.

Paragraph 6. It is only appropriate to interfere where the court concludes that the prosecution were acting in bad faith, in the sense of deliberately manipulating the system to deprive an accused of his rights. The prosecution may be open to abuse arguments where it brings additional charges on the expiry of custody time limits, in order to prevent the release of an accused on bail.

In R Wardle v Leeds Crown Court [] 1 AC , for example, a murder charge was replaced with a manslaughter charge when the custody time-limit was about to expire. It was held that the bringing of a new charge would be an abuse of process if the bringing of that charge cannot be justified on the facts of the case by the prosecutor and the court is satisfied that it has been brought solely with a view to obtaining the substitution of a fresh custody time-limit.

A similar view was taken in cases where the prosecution lays an information just within the time limit for commencing a prosecution simply to keep its options open and fails to serve a summons for some months thereafter R v Brentford Justices ex parte Wong 73 Cr. The Courts have recognised that the decision as to whether or not to prosecute involves many interlinking factors and considerations.

It remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. Furthermore, a prosecution that did not constitute an abuse at the date of conviction could not then become one on the basis of new or amended guidance or policy issued subsequently: R. DPP [] R. CPS , J. Barons Pub Co. Ltd v. However, R. Such cases will be determined by their own facts. The Courts must ensure that those charged with criminal offences do not simply procrastinate and seek to undermine the prosecution by creating hurdles to overcome all in the hope that, at some stage, a particular hurdle will cause it to fail: R.

Practice Note [] 1 Cr. These applications are rare and most commonly encountered in relation to attempts to avoid the normal extradition procedures or where oppressive methods have been used to investigate crime although the category is not limited to these areas alone.

In Horseferry Road Magistrates' Court, ex parte Bennett [] 1 AC 42, the accused had been brought back forcibly to the UK, in disregard of extradition procedures that were available. This was held to amount to an abuse of process, even though a fair trial was possible, as the accused should not have been before the court in the first place. These principles were applied in R v Mullen [] 2 Cr.

However, the Court of Appeal emphasise that there may be cases in which the seriousness of the crime is so great, relative to the nature of a particular abuse of process, that it would be a proper exercise of judicial discretion to allow the prosecution to succeed. The jurisdiction does not exist to discipline the police or other executive arms of the State although of course it will incidentally do so , but rather to protect the integrity of the processes of justice".

The Court of Appeal upheld the refusal of a stay on the basis that the judge had been right to hold that what is required is a connection between the alleged wrongdoing and the trial. No evidence which was the product of torture or other ill-treatment was adduced at the trial, and the investigation did not amount, directly or indirectly, to employing the product of torture to make a case against the accused.

Of these two remedies, the grant of stay rather than the exclusion of evidence at the trial should normally be regarded as the appropriate response, since a prosecution founded on entrapment would be an abuse of the court's process. Police conduct which brings about state-created crime is unacceptable and improper, and to prosecute in such circumstances would be an affront to the public conscience.

However, if the accused already had the intent to commit a crime of the same or a similar kind, and the police did no more than give him the opportunity to fulfil his existing intent, that is unobjectionable.

Another example is Palmer [] EWCA Crim , where the police set up a covert operation in which local criminals could incriminate themselves by selling stolen property to officers who posed as the operators of a dishonest pawnshop business. Arrests were made only once a large number of offenders had incriminated themselves over a period of several months. The Court of Appeal rejected the defence argument on entrapment, holding that there had been 'no affront to justice'.

Where the court is faced with illegal conduct by police or prosecutors, so grave as to threaten to undermine the rule of law, the court is likely to regard itself as bound to stop the case.

In Grant [] QB 60, for example, the police unlawfully recorded privileged conversations between the suspect and his legal adviser. No useful evidence was gathered in this way, and so there was nothing to exclude under Section 78 PACE The Court of Appeal held that such unlawful acts, amounting as they did to a deliberate violation of a suspect's right to legal professional privilege, were 'so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution was thereby rendered abusive and ought not to be countenanced by the court'.

Warren involved illegal cross-border audio surveillance; the misconduct was very serious it involved misleading the Jersey Attorney-General and the Chief of Police, and the authorities of three foreign States and, without the product of the unlawfulness, there would have been no trial. However, there were also factors which, taken cumulatively, weighed heavily against a stay, including the fact that the offence was very serious and there was real urgency in the case and it was in these circumstances that the police cut corners and acted unlawfully.

How the discretion will be exercised will depend upon the particular circumstances of each case, including:. The basic purpose of the pleas of autrefois convict and autrefois acquit is to protect a defendant against repeated prosecutions for the same offence. A defendant may not be punished twice for an offence arising out of the same or substantially the same set of facts and that to do so would offend the established principle that there should not be sequential trials for offences on an ascending scale of gravity Connelly v DPP [] A.