England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN BURNLEY
Mr Recorder Carus QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2011

Lord Justice Stanley Burnton:

Introduction

1. On 29 November 2010 the respondent, M, was to be tried at the Crown Court in Burnley before Mr Recorder Carus Q.C. on an indictment containing one count of being concerned in supplying a controlled drug of Class A (namely a quantity of diamorphine). M applied for the prosecution to be stayed as an abuse of the process of the court, on the ground that he had been entrapped by a police officer into committing the offence. Both counsel considered that the application should be determined after the police officer in question, to whom we shall refer as JC, had given his evidence before the jury and been cross-examined. However, the judge considered that he could and should determine the application on the written material before him, which set out the circumstances in which the prosecution contended that M had been approached and had supplied the drug in question to JC. Having heard submissions on the part of the prosecution, and without calling on counsel for M, he stayed the prosecution.
2. The CPS duly appealed, with leave of the judge. We heard the appeal on 11 March 2011. Having considered the submissions of counsel for both the CPS and M, for which we are grateful, we allowed the appeal and ordered the proceedings for the offence to be resumed in the Crown Court. We said that we would give our reasons for our decision in writing. We now do so.

The facts

3. It will be appreciated that the facts to which we refer are those set out in the prosecution statements and the police summary of evidence that were before the judge. For the purposes of this appeal, those facts, and only those facts, must be assumed. When the trial proceeds, it may be found that those facts are not established, or that there were different or additional facts that bear upon the issue whether the prosecution is an abuse of the process.
4. Operation Nimrod was a covert operation targeted at drug dealing in the North West of England. During the operation undercover officers targeted a group of people in the Blackburn area, one of whom was M, and from 4 September 2009 to 29 December 2009 there were various contacts between the respondent and JC, an undercover officer.
5. On 29 October 2009 contact took place between JC and M who was with his girlfriend. They walked into Blackburn town centre and JC asked the M "Where can I get some white from in the town centre." M replied "You can get it off MC, but I haven't got the number. You can ring X though, but we'll have to meet him at the phone box near my house."
6. M and JC then decided to call the dealer and for that purpose they went to a phone kiosk where JC gave the defendant 40p to enable him to make the phone call. During the phone call M ordered "twenty white and brown" and they were directed to go an alleyway near to a public house and wait for the dealer. JC gave M £25 and confirmed "one of each". A short time later a Mercedes car drove up to them. M leant inside the driver's side window and a few seconds later he walked away from the vehicle which reversed away. M approached JC and handed him a cellophane wrap containing a brown substance and said, "That's your brown. It's a bit small but it's good gear." He also handed JC a blue coloured cellophane wrapper containing a substance and said, "That's your white; it's good white that."
7. The drugs were Diamorphine, and although the parties met on other occasions this was the only occasion when drugs were supplied by M to the undercover officer.

The judge's ruling

8. The Judge commented that the facts in this case were not in dispute and he had not thought it necessary to hear any evidence prior to making his ruling.
9. When the undercover officer had asked the respondent to acquire drugs for him he had done so in the knowledge that the respondent was a drug addict and that he would have sources of supply. Prior to the request being made there had been conversations between the officer and the respondent in which a bond of trust and friendship had been cultivated. The issue was therefore whether the respondent would have involved himself in this activity but for the request made by the officer.
10. It was apparent that the respondent was a user of drugs, however, in none of the periods of contact did the respondent of his own volition make any attempt to inculcate the undercover officer in the use of drugs. He did not offer to supply him any drugs, or persuade him to take drugs, and this remained the situation until 29 October 2009.
11. The authority of Loosely [2001] UKHL 53 [2001] 1 WLR 2060 indicated that it was unacceptable for the state through its agents to lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. Such conduct would be entrapment, a misuse of state power and an abuse of the process of the court. The law as now restated by the House of Lords needed to be applied with care, and each case had to be considered on its own particular facts. In this case the Judge was satisfied that the respondent would not have made any supply to the undercover officer had he not been incited by the officer to do so and that at the time the request was made the undercover officer had ingratiated himself with the respondent and they had become acquaintances, if not friends. The respondent had acceded to the request of the officer, not for profit but because he thought he was helping a fellow addict. In these circumstances, the prosecution was an abuse of the process.

The submissions of the parties

12. For the prosecution, it was submitted:

(1) The officer had done no more than pose an open ended question. He had not asked the respondent to commit a crime and had only given him an opportunity to commit a crime if he so chose.

(2) This was an example of the police doing no more than presenting the respondent with an opportunity to commit a crime. The police had not instigated or incited the crime.

13. For M, it was submitted:

(1) the police had breached the principle laid down by Lord Hoffmann in Loosely at paragraph 56 in which he stated that "the only proper purpose of police participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which they are already engaged. It is not to tempt people to commit crimes in order to expose their bad characters and punish them." The Judge was entitled to take the view that even if this was an authorised operation the police had caused M to commit an offence which he would not otherwise have committed.

(2) M was induced to procure heroin for the undercover officer by the prospect of assistance in purchasing bottles of sherry. M, who is also addicted to alcohol, is barred from entering the majority of the shops in his area which sell cheap liquor. JC provided a vital service to the respondent by taking money from him and purchasing bottles of sherry on his and his associates' behalf.

(3) M was particularly vulnerable to unfair pressure of this kind. The respondent was an intermediary who was tempted to move outside his usual way of life and to do a favour for a favour.

Discussion

14. It is common ground that the law on this subject is to be found in the opinions of the House of Lords in Loosely. Their Lordships emphasised that whether a prosecution is an abuse of the process by reason of the entrapment of the defendant depends on the facts of each case. In the present case, the principally relevant facts are:

(1) M was an addict who had never previously been convicted of supplying drugs. He was however committing criminal offences by obtaining and possessing diamorphine for his own use.

(2) JC insinuated himself into M's confidence as part of Operation Nimrod in order to obtain evidence against those supplying hard drugs at, we infer, a higher level than that of a street dealer.

(3) Operation Nimrod was a legitimate police operation and it is accepted that JC's conduct was legitimate as an attempt to obtain evidence against M's supplier.

(4) But for JC's request, M would not have supplied drugs.

(5) In order to do obtain that evidence, JC asked M where he could obtain hard drugs. He knew that M's supplier would not deal with JC directly, so that the supply would be indirect, through M.

(6) M was not asked himself to supply the drugs. He was asked where drugs could be obtained.

(7) No pressure or persuasion was used by JC, who offered no inducement to M to commit the offence.

It is (7) that is particularly significant in the present case.

15. There may be a difficult line to draw between legitimate police conduct and improper entrapment. In general, however, conduct that is open to a finding of such entrapment as to render a prosecution improper involves some pressure or persuasion on the defendant to commit the crime. Providing the opportunity for the commission of the crime will not of itself lead to a finding of entrapment. In Loosely, Lord Nicholls of Birkenhead said:

"[3] Moreover, and importantly, in some instances a degree of active involvement by the police in the commission of a crime is generally regarded as acceptable. Test purchases fall easily into this category. In Director of Public Prosecutions v Marshall [1988] 3 All ER 683 a trader was approached in his shop in the same way as any ordinary customer might have done. In breach of his licence he sold individual cans of lager to plain-clothes police officers. In Nottingham City Council v Amin  [2000] 1 WLR 1071 a taxi was being driven in an area not covered by its licence. The driver accepted plain-clothes police officers as fare paying passengers. Police conduct of this nature does not attract reprobation even though, in the latter case, the roof light on the taxi was not illuminated. The police behaved in the same way as any member of the public wanting a taxi in the normal course might have done. Indeed, conduct of this nature by officials is sometimes expressly authorised by Act of Parliament. The statute creating an offence may authorise officials to make test purchases, as in section 27 of the Trade Descriptions Act 1968.

[4] Thus, there are occasions when it is necessary for the police to resort to investigatory techniques in which the police themselves are the reporters and the witnesses of the commission of a crime. Sometimes the particular technique adopted is acceptable. Sometimes it is not. For even when the use of these investigatory techniques is justified, there are limits to what is acceptable. Take a case where an undercover policeman repeatedly badgers a vulnerable drug addict for a supply of drugs in return for excessive and ever increasing amounts of money. Eventually the addict yields to the importunity and pressure, and supplies drugs. He is then prosecuted for doing so. Plainly, this result would be objectionable. The crime committed by the addict could readily be characterised as artificial or state-created crime. In the absence of the police operation, the addict might well never have supplied drugs to anyone."

16. We also refer to the following passages in Lord Nicholls' opinion:

"[25] Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. ….

…..

[28] The nature and extent of police participation in the crime. The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather, this is a recognition that what may be a significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade, whether lawful or unlawful, being carried on by the defendant will not normally be regarded as objectionable."

17. We stress the reference to inducement and overtures. We also refer to Lord Hutton's opinion at paragraphs 113 and 114:

"[113] … The judge found that the undercover officer had presented himself to Looseley as an ideal customer for a drugs deal, but the judge also found specifically that he did not go beyond that portrayal and that he presented himself exactly as someone in the drugs world would expect to see a heroin addict. There then arose a relationship between Looseley and the officer during which Looseley supplied him with heroin on more than one occasion. The judge found that there was evidence to show that Looseley was steeped in the drug culture and encouraged the officer, whom he probably saw as a lucrative customer, to take more heroin from him.

[114] The judge's conclusion in the light of the facts before him was that, whilst the officer presented himself as an ideal customer so far as a drugs dealer was concerned, the officer did not do anything other than present himself as such, and accordingly the conduct of the officer did not constitute incitement. In my opinion the judge's assessment, which he made in the course of a lucid and careful ruling, was one which he was fully entitled to make."

18. In our judgment, there is no significant distinction between the assumed facts of the present case and the facts of Loosely. It is an inherent aspect of any undercover police operation that the undercover police officer insinuates himself into the confidence of those involved in the criminal conduct at which the operation is directed. For an officer who has so insinuated himself to offer an opportunity to a defendant to commit a criminal offence, in the absence of persuasion or pressure or the offer of a significant inducement, will not generally result in its being an abuse of the process to prosecute the person who takes that opportunity to commit an offence.
19. For these reasons, in our judgment it was not open to the judge to make a finding of entrapment on the assumed facts before him such as to render the prosecution of M an abuse of the process.
20. If, during the course of evidence, facts (for example, that there was pressure put on M to supply the drugs in question) are established that go significantly beyond those on which the judge made his decision, it may be necessary to review our decision. It is for this reason that we consider that it would have been sensible for the judge to have followed the procedure suggested by counsel, that is for the issue of entrapment to be addressed after JC had given evidence before the jury, with if necessary M giving evidence at that stage in the absence of the jury.
21. It goes without saying that the matters relied upon by M in support of his application for a stay of proceedings will be relevant to sentence, if he changes his plea or is convicted.