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England and Wales Court of Appeal (Criminal Division) Decisions
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Cite as:  Crim LR 645,  HRLR 47,  EWCA Crim 1214,  2 Cr App R 26
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Case No: AG Ref.3 of 2000
Neutral Citation Number:  EWCA Crim 1214
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 17th May 2001
LORD JUSTICE KENNEDY
MR JUSTICE CURTIS
MR JUSTICE HUGHES
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Attorney General's reference No 3 of 2000
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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David Perry [Mr. D. Atkinson] (instructed by Treasury Solicitor) for the Crown
Ben Emmerson QC and Alistair Munt (for the Respondents)
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As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
Introduction and Point of Law
1. Where a person tried on indictment has been acquitted section 36(1) of the Criminal Justice Act 1972 enables the Attorney General to refer to this court for its opinion a point of law which has arisen in the case. The accused with whom we are concerned was alleged to have supplied heroin to under cover police officers on two occasions in April 1999. At the start of his trial in the Crown Court in November 1999 it was submitted on his behalf in the absence of the jury that the officers had incited him to commit the offences, and that the proceedings against him should be stayed. The trial judge accepted that submission. The prosecution then offered no evidence, and the accused was acquitted. The point of law which the Attorney General now asks us to consider is -
"In a case involving the commission of offences by an accused at the instigation of under cover police officers, to what extent, if any, have:
i. The judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984; and
ii. the power to stay the proceedings as an abuse of the court;
been modified by article 6 of the European Convention
on Human Rights and the jurisprudence of the European
Court of Human Rights?"
2. Proceedings against two co-accused have been stayed pending the result of these proceedings.
English Law prior to 1998
3. In R v Sang  AC 402 the House of Lords made it clear that although a trial judge had a jurisdiction to exclude evidence which was more prejudicial than probative he could not exclude relevant admissible evidence simply because it was obtained by improper or unfair means, such as entrapment by an agent provocateur. At 431G Lord Diplock said -
"What is unfair, what is trickery in the context of the detection and prevention of crime, are questions which are liable to attract highly subjective answers."
4. At 432B he approved the authorities indicating that there is no defence of entrapment known to English law and continued -
"Many crimes are committed by one person at the instigation of others. From earliest times at common law those who counsel and procure the commission of the offence by the person by whom the actus reus itself is done have been guilty themselves of an offence, and since the abolition by the Criminal Law Act 1967 of the distinction between felonies and misdemeanours, can be tried, indicted and punished as principal offenders. The fact that the counsellor and procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender; both the physical element (actus reus) and the mental element (mens rea) of the offence of which he is charged are present in his case.
5. For present purposes it is unnecessary to cite from the other speeches, but it is important to recognise that long before 1980 it was appreciated that members of the public might need to be protected from the activities of under cover police officers and others. The matter was considered by the Royal Commission on Criminal Procedure in 1929, the Home Office issued guidelines in 1969 and in 1984, with the advent of the Police and Criminal Evidence Act, the Association of Chief Police Officers issued further guidelines to assist in briefing any police officer assigned to work as a test purchase officer. The first two paragraphs of the "Instruction to Test Purchase Officer" read -
"1. A Police Officer must not act as an `agent provocateur'. This mean he/she must not incite or procure ... a person, nor through that person anybody else ... to commit an offence, nor an offence of a more serious character, which that person would not have otherwise have committed.
2. However, a Police Officer is entitled to join a conspiracy which is already in being, or an offence which is already `laid on', for example, where a person had made an offer to supply goods, including drugs, which involve the commission of a criminal offence."
6. The Instruction concludes with a reference to section 78(1) of the 1984 Act which provides that -
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
7. In DPP v Marshall  2 All E R 683 police officers in plain clothes purchased small quantities of alcohol from the defendant's shop. He was not licensed to sell alcohol other than by the case. When he was prosecuted the magistrates were persuaded to use section 78 to exclude the evidence of the police officers because they had not at the time admitted who they were. In the Divisional Court it was pointed out that the admission of the evidence could have no adverse effect on the fairness of the proceedings, and the case was remitted to the justices with a direction to continue the hearing.
8. In R v Christou  1 QB 979 the defendants were caught by an undercover police operation which set up a shop purporting to buy and sell jewellery commercially. Their submission that the police evidence should be excluded pursuant to section 78 was rejected by the Court of Appeal. At 989A Lord Taylor CJ said -
"The trick was not applied to the appellants; they voluntarily applied themselves to the trick. It is not every trick producing evidence against an accused which results in unfairness. There are, in criminal investigations, a number of situations in which the police adopt ruses or tricks in the public interest to obtain evidence."
What was being stressed was that the defendants were free to choose whether or not to offend.
9. In Williams v DPP  3 All E R 365 the police left in the street a van containing dummy cartons of cigarettes which the defendants removed from the van. On their behalf it was contended that the police evidence should be excluded because they had unfairly put temptation in the way of the defendants. That was rejected at trial and in the Divisional Court, reference being made to Christou.
10. In Smurthwaite and Gill  98 Cr App R 437 the Court of Appeal considered appeals by two defendants each separately convicted of soliciting to murder, the person solicited in each case being an undercover police officer posing as a contract killer. At 440 Lord Taylor CJ, giving the judgment of the court, said that section 78 "has not altered the substantive rule of law that entrapment or the use of an agent provocateur does not per se afford a defence in law or to a criminal charge." A little later he continued -
"However, that is not to say that entrapment, agent provocateur, or the use of a trick are irrelevant to the application of section 78. The right approach to the 1984 Act, a codifying Act ... is simply to examine the language of the relevant provision in its natural meaning and not to strain for an interpretation which either reasserts or alters the pre-existing law. Viewed in that way, the phrase emphasised by (counsel) clearly permits the Court to have regard to `the circumstances in which the evidence was obtained' and to exclude it, but only if it `would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it'. Thus the fact that the evidence has been obtained by entrapment, or by agent provocateur, or by a trick does not of itself require the judge to exclude it .... In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors which the judge may take into account are as follows:
Was the police officer acting as agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed?
What was the nature of any entrapment?
Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence?
How active or passive was the officer's role in obtaining the evidence?
Is there an unassailable record of what happened, or is it strongly corroborated?"
11. Leaving section 78 aside for a moment, in ex parte Bennett  1 AC 42 the House of Lords made it clear that the High Court or the Crown Court can enquire into the question of how the defendant was brought into the jurisdiction, and can stay proceedings where extradition procedures have been outflanked. Lord Griffiths at 62A held that the power to do arose -
"because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour which threatens either basic human rights or the rule of law."
12. As Neill LJ said in the subsequent case of Beckford  1 Cr App R 94 at 100F (a case concerned with destruction of evidence) -
"The constitutional principle which underlines the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions. In the words of Lord Devlin in Connelly v DPP ... the courts have `an inescapable duty to secure fair treatment for those who come or are brought before them.'"
That brings us to Latif and Shahzad  2 Cr App R 92 which concerned a drugs importation from Pakistan. An informer agreed with Shahzad to import the drugs into the United Kingdom. They were carried by a customs officer who was not properly authorised to act as he did, and the informer then persuaded Shahzad to come and collect the drugs. Shahzad and Latif were then arrested. The trial judge refused to stay the proceedings or to exclude evidence pursuant to section 78. At 97E Lord Steyn said -
"The principles applicable to the court's jurisdiction to stay criminal proceedings, and the power to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 in a case such as the present, are not the same. Nevertheless there is a considerable overlap."
13. He then referred to the evidence including, as Mr Emmerson QC points out, the finding of the trial judge that all the suggestions for the crime came from Shahzad. Lord Steyn recognised that the particular importation would not have taken place when and how it did without the assistance of the informer and the customs officer, and he continued at 99F -
"The highest that the argument for Shahzad can be put is that (the informer) gave him the opportunity to commit or to attempt to commit the crime of importing heroin into the United Kingdom if he was so minded. And he was so minded. That is not necessarily a decisive factor but it is an important point against the claim of abuse of process."
14. After considering the position of the customs officer Lord Steyn at 100G pointed out that where there is entrapment or misconduct by the law enforcement agencies there is a dilemma -
"If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime. The weaknesses of both extreme positions leaves only one principled solution. The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings."
15. Lord Steyn went on to conclude that in the instant case a fair trial was possible. That was not really in issue, the argument being that the judge ought to have stayed the proceedings on broader considerations relating to the integrity of the criminal justice system. As to that he had to "weigh in the balance the public interest in ensuring that those that are charged with grave offences should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means." Lord Steyn at 101F supported the conclusion of the trial judge, saying-
"The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour of the customs officer was venial compared with that of Shahzad."
16. As to section 78(1) of the 1984 Act the judge had found that Shahzad was not in any way prejudiced in the presentation of his defence. That could not be challenged, and so it had to be accepted that if the submission in relation to abuse of process failed, there could be no separate argument based on section 78(1).
17. Pausing there, it seems to us that by 1998 in cases where it could be said that an offence was committed at the instigation of an undercover police officer three things were clear -
"(1) Entrapment itself afforded no defence (Sang), but
(2) If the conduct of the undercover police officer or law enforcement officer was so unworthy or shameful that is was an affront to the public conscience to allow the trial to proceed, or if had rendered a fair trial impossible, the trial judge would stay the proceedings (Latif), and
(3) The judge could also exclude the evidence of the undercover officer under section 78 if the circumstances in which the evidence was obtained would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In exercising that discretion relevant factors included those set out in Smurthwaite and Gill, the first and second of which focussed on the defendant's freedom of choice. In other words they concentrated upon the extent to which, if at all, the undercover officer did more than provide an opportunity to offend."
The Human Rights Act 1998 and Convention Jurisprudence
18. The Human Rights Act 1998 requires us to read primary legislation in a way which is compatible with the Conventions Rights (section 3(1)) and requires all public authorities, including courts, to act in a way which is compatible with Convention Rights (section 6(1)). So, as Mr Emmerson submits, if the facts of a case are such that if the case proceeds and certain evidence is admitted there will be a breach of the right to a fair trial enshrined in Article 6 of the Convention, the court must use its powers to prevent that from happening. But that begs the question of when Article 6 will be infringed. As to that we must take into account decisions of the European Court of Human Rights and of the Commission (section 2(1) of the Act). Such decisions although persuasive are not binding upon us.
19. The first decision of the European Court which we were asked to consider is Schenk v Switzerland  13 EHRR 242. The applicant complained under Article 6 of the use in evidence against him of an unlawfully obtained recording of a telephone conversation. In dealing with that complaint the court said at 265 paragraph 46 -
"While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenke's trial as a whole was fair."
20. The court has never resiled from that assertion as to the primacy of national law in relation to the admissibility of evidence, and in that case no violation of Article 6 was established.
21. In Radermacher and Pferrer  the Commission rejected the submission that the police informer was the real initiator of the counterfeiting offences, and the report seems to be of little value for present purposes. Similarly in Ludi v Switzerland  15 EHRR 173 the decision of the court in relation to Article 6 turned on the prosecution failure to have the undercover agent available for cross examination, which is not a matter with which we are concerned.
22. That brings us to Teixeira de Castro v Portugal  28 EHRR 101 the decision of the European Court upon which the trial judge in the present case placed considerable reliance. Mr Emmerson submits that he was right to do so. In that case the undercover police officers approached a suspected small-scale drugs dealer to obtain hashish. They hoped that he would lead them to a larger supplier, but nothing came of that. The officers then indicated an interest in heroin, and he mentioned the applicant's name, as someone who might be able to find heroin. The dealer got the address of the applicant from someone else and they all went and parked outside the applicant's home. He then came out to their car. The officers asked him for 20 grams of heroin, and he agreed to get it and went off and did so. When he handed it over he was arrested.
23. The European Court in paragraph 34 of its judgment reiterated that "the admissibility of evidence is primarily a matter for regulation by national law" and that the function of the Court is "to ascertain whether the proceedings as a whole, including the way in which the evidence was taken were fair."
24. Both the Commission and the Court emphasised that expediency could not justify improper conduct on the part of police undercover officers. That appears to us entirely consistent with the approach of the English courts in ex parte Bennett and Latif and Shahzad (supra).
25. Both the Commission and the Court attached considerable significance to the fact that although Portuguese law provided for judicial authorisation and supervision of police investigations, the officers in question had chosen to act without any such approval. Although it is apparent from the judgment that they were not outwith their statutory powers, it is plain that in assessing their conduct this factor was of great importance. That particular consideration would not of course apply in English law, but the English authorities similarly attach importance to the degree of propriety or impropriety in the conduct of the officers.
26. Both the Commission and the Court attach considerable significance to their conclusion that there was no evidence of any disposition in the accused to commit the offence of drugs dealing, but for the actions of the officers.
27. The Commission asked itself (at paragraph 45) whether the role played by the police officers was so decisive that it affected the fairness of the proceedings. It said that where an undercover agent is used an issue as to the fairness of the proceedings may arise "where a criminal offence is committed and the accused is convicted purely as a result of the conduct of the officers in question" (our emphasis). Furthermore the Commission drew attention to the fact that one division (although not the other) of the Portuguese Supreme Court had described the officers as "agents provocateurs", which expression in Portugal is used to mean someone who actually incites another to commit a criminal offence. It concluded (at paragraph 49) that the officers' actions were essentially, if not exclusively, the cause of the offence being committed and that the officers "incited the accused to commit a criminal offence which he might not have committed if he had not been provoked." The Court reached a similar conclusion, holding that the officers had exercised an influence such as to incite the commission of the offence, and that there was nothing to suggest that without their intervention it would have been committed.
28. There are aspects of this decision on the facts which are not easy to follow. Seen from the point of view of Teixeira de Castro it seems clear that two men seeking heroin were brought to his home. It might be thought that he had freely agreed to get the heroin at the price offered and did so. The supply of it was a criminal offence. It is not easy to see why he was deprived of a fair trial if it were simply a case of the putative purchasers turning out to be police officers and not drug users. The decision on the facts, however, appears to have been that the officers did more than simply afford him an opportunity to break the law which he took, that their actions were not sufficiently officially sanctioned or controlled, and that he was persuaded to such an extent that but for their actions he would not have behaved in a similar way.
29. The Commission considered the case of Shahzad (application No 34435/96) after it had dealt with Teixeira de Castro, but before that case had been decided by the Court. It distinguished Shahzad on the basis that although the undercover agents gave Shahzad the opportunity to commit the crime, and the importation into the UK would not have taken place when and how it did without their assistance, they did not take the initiative but only reacted to an offer. The question of who took the initiative will often, we agree, be very relevant to the question whether the officers did more than give to the accused an opportunity to break the law in circumstances where he would have done so if given a similar opportunity by someone else, but we are confident that there can be no rule that if an undercover officer meets someone whom he believes to be a drug dealer the admissibility of evidence of supply will depend on who spoke first. For similar reasons it is clear that the statement in Teixeira de Castro (at paragraph 36) that "the public interest cannot justify the use of evidence obtained as a result of police incitement" was a statement of the broad proposition that the end cannot justify improper means and should not be read so widely as to render improper all cases of test purchase unless the negotiations were opened by the accused speaking first and making an offer to sell.
30. In his concurring opinion in Saunders v UK  23 EHRR 313 - a case concerned with the use at a criminal trial of statements obtained under compulsory powers - Judge Walsh, a member of the European Court, observed at 344 that "persons are always free to incriminate themselves if in doing so they are exercising their own will". That, surely, is the basic principle. .
English Decisions since 1998
31. We have not attempted in this judgment to deal with all of the authorities to which we were referred during the course of argument, but two further decisions do merit detailed consideration. The first is Nottingham City Council v Amin  1 WLR 1071 which concerned a taxi driver operating outside the area for which he was licensed. He was hailed by undercover police officers. At trial the magistrate described them as agents provocateur and excluded their evidence under section 78 of the 1984 Act, but the Divisional Court held that he was wrong to do so. As Lord Bingham CJ noted at 1075H there was no evidence of any pressure exerted by the constables, or any persuasion of the defendant, and he was not wheedled into doing what he did. Lord Bingham at 1076H said that where law enforcers have been involved courts in this country have adopted a fairly consistent line -
"On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressured or wheedled into committing it by a law enforcement officer. On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives an defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."
That, as it seems to us, sets out clearly the position in English law. Lord Bingham then addressed the jurisprudence of the European Court, including in particular Teixeira De Castro. Counsel in Amin accepted that his interpretation of the European Court's decision would have a profound effect on the English approach to test purchase cases such as Marshall (supra). Having noted at 1080E that in Teixeira De Castro both the Commission and the Court referred to lack of judicial supervision at the investigative stage, something which has no parallel in English criminal procedure, Lord Bingham at 1080H expressed reservations about the submissions made in reliance on a precise and literal reading of the Court's language. He said -
"It seems to me that that conclusion has to be understood in the context of the whole argument before the court on that occasion and on the special facts of the case. It is true that in the present case the criminal activity alleged was more minor. It is also true that the facts are much simpler and that they simply cannot lend themselves to the construction that this defendant was in any way prevailed upon or overborne or persuaded or pressured or instigated or incited to commit the offence. The question for the stipendiary magistrate was whether, on the facts which he found, the admission of this evidence had such an adverse effect on the fairness of the proceedings that he should exclude it, or whether (to put the test in a different way) the effect of admitting it was to deny the defendant a fair trial.
In my opinion the only possible answer to both questions was `No'. If an affirmative answer had been possible then the question became one for the stipendiary magistrate and for his exercise of discretion. "
32. The decision of the Divisional Court in Amin was considered and followed by this court in Loosely 13th April 2000 unreported. In that case an undercover officer got the telephone number of someone who was said to be able to supply drugs. When he telephoned the appellant answered. When the officer asked for drugs he was invited to the appellant's flat and was able to make a purchase of heroin. There were subsequent purchases made in the same way. When dealing with the submission that the evidence of the undercover officer should be excluded under section 78 the trial judge applied the criminal standard of proof. In the light of the decision of the Divisional Court in Saifi v Governor of Brixton Prison and India 21st December 2000 unreported that was unnecessary and inappropriate (see paragraph 52 of the judgment in Saifi), but it cannot have operated to the detriment of the appellant. The evidence was admitted and in this court Roch LJ, giving the judgment of the court, said at paragraph 30 -
"In our judgment the law is clear, and the law is consistent with the European Convention of Human Rights and the judgment of the European Court of Human Rights, namely that if an accused person's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by a law enforcement officer, then the evidence of that law enforcement officer should be excluded by the trial judge exercising his power under section 78 of the 1984 Act. In many cases were such a ruling to be made the case against the accused would not be able to proceed further. On the other hand, if the law enforcement officer has done no more than give an accused the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else, then there is no reason why the officer's evidence should be excluded and the accused's trial should proceed with that evidence being admitted."
It is the final sentence which, in our judgment, is really illuminative, and although the court was there concerned with an application under section 78 it could equally well have been considering an application to stay the proceedings.
33. Mr Perry, for the Attorney General, accepts that although there is no defence of entrapment in English law, where an undercover officer has been involved, and there is a causative link between his or her involvement and the commission of an offence, the court can stay the proceedings or exclude evidence under section 78. But it should first ensure that no injustice will result, as might happen if, for example, undercover officers were to incite someone to commit murder and then, after the offence has been committed, the principal offender were to be protected by over ready judicial intervention. In deciding whether or not to intervene the proper approach, taking account of Article 6 and of the European Court's jurisprudence, is that set out by Lord Bingham CJ in Amin and by Roch LJ in this court, namely to ask if the undercover officer has done no more than give the accused an opportunity to break the law, of which the accused has freely taken advantage. In that context the factors identified by Lord Taylor CJ in Smurthwaite and Gill are relevant. The first two factors are directly concerned with the extent to which the offender was able to make a free choice without being, as Lord Bingham put it in Amin "prevailed upon or overborne or persuaded or pressured or instigated or incited to commit the offence". The fourth factor - the activity or passivity of the officer's role - addresses the same point, and the third and fifth factors are concerned with the nature of the evidence which the offender will have to meet if the evidence is admitted, something which is clearly relevant to the underlying and all pervasive issue, namely the fairness of the trial. At first sight it may be difficult to see what turns on the seriousness of the offence, or on the offender's pre-disposition to offend, but on reflection it is clear that both of those factors may bear upon the question of whether the offender freely chose to offend.
34. For the respondent Mr Emmerson submits that the present case is unusual because the trial judge found as a fact that the actions of the undercover officers brought about an offence which would not otherwise have occurred. That is true to a point, but it begs the question whether the judge was led to the same error as the magistrate in Amin. Before the judge the Crown conceded in argument that the offence was one committed due to the actions of the police officers. As is obvious, in every case of undercover purchase the particular offence of supply would not have been committed without the intervention of the officers but this is not enough to render the case an abuse of process or the evidence ipso facto inadmissible. What needs to be ascertained is the test to be applied by the court to the facts in order to decide whether to intervene. Mr Emmerson submits that the proper approach, in the light of the European Court decisions, is to ask whether the officer assumed an active role, with the result that the offender committed an offence which would not otherwise have been committed, but Mr Emmerson resiles from the full extent of the submission made by Mr Beloff QC in Amin. In order to leave some room for test purchasers he submits that the correct question is whether there is evidence from which it can be inferred that the same type of offence would have been committed albeit in different factual circumstances. We accept that if that question can be answered in the affirmative the answer does tend to show that on the relevant occasion the offender freely chose to offend. Mr Emmerson submitted that if it cannot properly be inferred that the same type of offence would have been committed albeit it in different factual circumstances then the evidence of the undercover officer is inadmissible and it is immaterial that the offender was ready and willing to offend, and able to choose freely. Mr Emmerson submits, and we accept, that the seriousness of the offence cannot directly affect the principles to be applied, and he further submits that his approach accurately reflects English domestic law and the true effect of Article 6 as interpreted by the European Court.
Answer to Question
35. The approach in fact adopted by English courts to the evidence of undercover officers is set out in the authorities to which we have referred, especially Latif and Shahzad, Amin and Loosely. The approach has evolved to some extent over the years since 1980. It takes account of the 1984 Act and a number of landmark decisions. In considering in a case of this type an application either to stay or to exclude evidence pursuant to section 78 the Court will be concerned both with the freedom of action of the accused and with the propriety or otherwise of the actions of the undercover officers. In most cases the principal question will be whether the officers did no more (whether by active or passive means) than to afford the accused the opportunity to offend, of which he freely took advantage in circumstances where it appears that he would have behaved in a similar way if offered the opportunity by someone else or whether, on the other hand, by means of unworthy or shameful conduct, they have persuaded him to commit an offence of a kind which otherwise he would not have committed. That approach is in our judgment consistent without modification with Article 6. Teixeira de Castro must be considered on its own facts in the setting of Portuguese criminal procedure. It will not always be easy in a particular case to say whether the accused freely accepted an opportunity and would have acted similarly if it had been presented by someone else. We apprehend that at one end of the spectrum of possibilities, the offer of a market price for drugs to a man willing to trade in them, with the associated profit, would not ordinarily lead to the conclusion that the accused had been persuaded to do something which otherwise he would not have done. Towards the other end of the spectrum, to dangle the offer of large sums in front of a person known to be in particular need of money, perhaps for his family, might be held to be unworthy or shameful conduct which had the effect of persuading him to do something which otherwise he would not have done. We do not think that is wise to attempt to lay down in advance any rule for deciding when a court should intervene in relation to an accused, who has criminal inclinations of one form, and who has apparently been persuaded by shameful or unworthy conduct to commit an offence of a kind different to that which otherwise he would have been likely to commit. We should say that we do not accept Mr Emmerson's submission that it is enough that the offence committed would have a different description in an indictment from that which otherwise the accused would have been disposed to commit, still less that a man who had previously contemplated dealing in Class B drugs would ordinarily be acting other than freely if he accepted an opportunity offered to deal in drugs of Class A. It will no doubt often, although not always, be the case that a man of demonstrated disposition to deal in one sort of prohibited substance will freely accept an opportunity to deal in another, with no significant persuasion or wheedling, and likewise that a man of demonstrated disposition to act in a criminal manner will freely accept an opportunity to act in another criminal manner. Each case, however, will depend on its facts.
The Facts of this Case
36. It seems that for the purpose of dealing with the submissions the judge, without hearing evidence, decided to accept the defence version of what occurred. That was not the right approach. As Leggatt LJ said in Lawrence and Nash 14th December 1993 unreported, at 14B -
"It is wrong in principle to attempt to determine the admissibility of conversations, the content of which is in issue, on an assumption that one party's account of them is true and accurate when the truth or otherwise of the account is material to the question that the judge has to decide."
37. Unless there was agreement as to all material facts evidence should have been called so that the facts could be ascertained. Fortunately the areas of dispute seem to have been limited, but as the accused has now been acquitted, and as we only have in writing statements which set out the prosecution version of the relevant facts, we propose to proceed upon the basis that that version would have been found to be correct.
38. On 17th March 1999, in a housing estate in Derbyshire, two undercover police officers offered contraband cigarettes to a youth. He took the officers to the accused, saying that the accused would "take a whole car full if you have got it. He'll have anything". The youth also said that the accused "can sort you out with anything", to which one of the officers replied "brown?" (meaning heroin), and received the reply "Yeah, anything". That was not said in the presence of the accused, but the officers got his mobile telephone number and on 24th March 1999 they telephoned him, and negotiated to provide him with more cigarettes, which they delivered to his home. After they had received payment the conversation went as follows -
"Officer: S said you could sort us some brown as well.
Accused: I don't know about that mate, I'll have to see.
Officer: Oh, right.
Accused: Ring me in a bit, I'll see if I can sort you out later.
Officer: What time?
Accused: Ring us at nine o'clock."
39. At 8.45 pm the officers telephoned the accused again and after introductions the conversation continued -
"Officer: Any good?
Accused: Yeah, no problem, he's just gone to get it.
Officer: What time then?
Accused: Well he's just set off so it will take him about an hour and a half to get back from there.
Officer: Aw mate, were gonna have to head off back.
Accused: Hang on, what are you after?
Officer: Some brown.
Accused: Oh, sorry mate, wrong one. No I can't sort you out at short notice.
Officer: Oh right, when then?
Accused: Well when are you here next?
Officer: well we might be back up tomorrow but if not we'll definitely be up next week.
Accused: All right next time you're up here I'll definitely sort you out."
40. The accused indicated that he would take any available cigarettes and the conversation ended.
41. On the following afternoon, 25th March 1999, the officers telephoned the accused again saying that they would be coming up tonight and did he want any cigarettes. The accused indicated that he did, and the conversation continued -
"Officer: Right, how much notice do you need to sort this brown?
Accused: I won't be able to do you any tonight but I can get as much as you want for next week."
42. In fact no cigarettes were provided on that night and when the officers telephoned the accused to tell him they would have some next week and did he want anything special he replied "Just some more fags mate, I'll have some gear for you as well."
43. On 1st April 1999, at about 1.50 pm, the officers telephoned the accused to say that they would be coming with cigarettes and he said -
"Accused: Do you want anything?
Officer: What have you got?
Accused: I've got that point.
Officer: Can you do me half ounce?
Accused: Not that much, I've only got this point, I can put you on to someone if you want more though.
Officer: Well I'll have that point off you and we'll see about the rest. How much for the point?
Officer: Right, see you later."
44. Later, at about 4.50 pm, the officers telephoned the accused offering to deliver the cigarettes. The accused agreed to that, saying -
"Accused: .... All right then I'll take you round to get that half-ounce.
Officer: I'm in a bit of a hurry tonight mate can I just take that point off you tonight?
Accused: Well I've got to take you round there to get that anyway."
45. When the officers delivered the cigarettes the accused paid for them and took the officers to another address. He then spoke on his telephone about numbers and quality and paused to ask the officers "do you still want that half ounce 475?" They said they did and, having concluded his telephone conversation, the accused said it would be there at 6.15 pm. The officers said they didn't have the money to pay for it then, and offered to take the point "see what its like and half the half later". The accused put that proposition over the telephone to his supplier, who suggested that the officers go and get their money and their tester. They agreed, but later rang the accused to say they could not get the money that night, and asked if he could hold it for them, to which the accused replied -
"Accused: Look I'll hold it till tomorrow dinner but that's it.
Officer: Yeah that's great, look I'm sorry for messing you about but when you said you couldn't do the half I only brought enough money for a point.
Accused: Yeah no problem mate."
46. The following morning, 2nd April 1999, the officers went to the accused's home and the accused said he would be taking them to meet the heroin supplier at 11.15 am. They said they needed to be at Dover by 2 pm. Whilst waiting to meet the supplier in a café the accused told the officers that in future he would allow them to deal directly with the main dealer, and that he would provide them with the dealer's telephone number once the dealer was happy with them. He said the main dealer could provide large amounts if given two days notice. He wasn't into heroin himself. The accused then accompanied the officers to the meeting place, and when another car arrived the accused collected heroin from that car and gave it to the officers in exchange for £475. The accused then told the officers to telephone him the following week and he would give them the supplier's telephone number.
47. Four days later, on 4th April 1999, the officers went to the accused's home. He was in the doorway talking to another man and was heard to say "I'll try to sort you out an eighth for personal". The officers spoke to him about tobacco and he asked, "was that other stuff alright then?" He gave the officers the telephone number of the supplier, and the officers then made their arrangements directly with the suppliers, from whom they obtained two further consignments of heroin. On 20th April 1999 the suppliers were arrested, and the accused was arrested on the same day. When interviewed he said that the officers "were getting me cheap fags, so as far as I was concerned a favour for a favour." He said they had wanted him to do it, but at no stage did he suggest that the officers exerted pressure of any kind. He may well have believed that if he facilitated the supply of heroin he would be more likely to be able to buy more cheap cigarettes, but that was all.
The Decision in this Case
48. The judge did not hear evidence and thus did not reach any conclusions of primary fact. He reached the conclusion he did with evident reluctance. He formed the view that the decision in Teixeira de Castro robbed him of the power to make any decision other than he did, and created a situation where the only test to be applied was whether the officer was acting as an agent provocateur in the sense that he was enticing the accused to commit that particular offence which he did. In that we are satisfied he fell into error. He further appears to have directed himself that the accused's proven history of dealing on some scale in Class B drugs was of no relevance. Since his disposition to commit the offence in the absence of persuasion by the officers was directly relevant, that was a misdirection, as Mr Emmerson only faintly disputed. If, on the facts we have recited, the Judge had asked himself whether the undercover officers had done more than give the accused an opportunity to break the law of which the accused had freely taken advantage then, in our judgment, he would have answered that question in the negative, and he would not have ruled as he did.