England and Wales Court of Appeal (Criminal Division) Decisions

“I got your number from a geezer down the Circle, a bloke with a pony tail who said you could sort me out.”

The appellant replied that he could not; he was not doing any business at the moment. The officer identified himself as Mark, and the appellant asked if he knew him. Mark said no, he was just looking for some gear and getting a bit strung out. The appellant said that other people around the Circle were doing business, but he was not doing business any more: “Because I did used to live up here, but I’ve moved now”. Mark asked him for the numbers of other suppliers, but the appellant said he could not give them and: “If you rung them up they would blank it.” He explained: “... that if they don’t know you they’re going to be a bit paranoid.” Only a couple of people were doing business, and they were being very careful.

“You said you were dry and that, and I am having a bit of a mare, I’m just giving you a bell to see if you’ve got anything or not.”

The appellant said that he had not, and was not in business. Mark said that he was suffering and that it was a nightmare. The appellant asked where he was; the officer told him and said

“I can always get to you”. The appellant said: “I hear what you are saying, but I mean I sorted myself out. I’m starting work Monday, see, so I’m trying to ...”

He was in fact starting a new job on the Monday, to which the defence attached importance. Mark said

“Oh right, you ain’t got no numbers or nothing, have you, I’m really struggling now.”

The appellant said that he had not, and Mark said:

“I mean what’s happening round here, I’m getting numbers and it’s a nightmare, it’s all a right pain. I’ve never known it before like what’s the score then?”

The appellant then said: “Hold on a second, I’ll see what’s happening.” There was a sound of a faint conversation in the background. The appellant then said:

“No, there’s a geezer here. I just asked him if he had anything and he hasn’t.”

“It’s Ange. My chap Mark ‘phoned you this morning. It’s just we’re bang in trouble and I can’t get anything sorted, he’s just booted me out. I understand what you are saying but we are in trouble.”

“Hello man, it’s Ian, are you at home? Have you got, one, see you in two minutes, bye.”

“Will he be able to sort me out again, at some time if you tell him who I am or something? I know what it’s like. What the hell is going on round here, you can’t fucking score.”

The appellant said you could understand people being a bit careful. Ange said that the situation was “fucking ridiculous” and the appellant replied:

“Loads of friends of mine, well three or four people I know, they got 5½ years each for serving the Old Bill you know.”

“No, I hear what you are saying, but I score for you, you know you can sort me out, I might be able to sort something out, you know.”

Ange said:

“I mean if I can ‘phone him sometimes or something. I know you’ve done me a favour, but I can’t do it, he’ll go fucking bonkers.”

To which the appellant replied:

“That’s absolutely no problem, don’t bother calling me again though, darling.”

“... a disjunctive and technical meaning. He was intending to invoke the more general concept of conduct which causes the defendant to commit the effect [offence] as opposed to give him the opportunity to do so.”

“I am of the opinion that he was given the opportunity to break the law in circumstances where it appears that he would have behaved in the same way if the opportunity had been offered by anyone else.”

such as one seeking supply of Class A drugs. This was not a situation where, had there been no police operation, the addict might well have not supplied drugs to anyone.

“Therefore the approach taken by the English cases is that it is necessary to balance the competing requirements that those who commit crimes should be convicted and punished and that there should not be an abuse of process which would constitute and affront to the public conscience. In carrying out this balancing exercise it will be necessary for the court in each individual case to take into account a number of factors. These factors have been discussed in the speeches of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann and I am in full agreement with the views which they express. I further consider, with respect, that the approach to betaken by a court and the matters to be considered are well set out in the dissenting judgment of McHugh J in the High Court of Australia in Ridgeway -v- The Queen (1995) 184 CLR 19, 82 (save that, in my opinion, a prosecution should not be permitted to proceed where the evidence had been obtained by threats):

‘I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. The question should be determined after considering four matters:

(1) Whether the conduct of the law enforcement authorities induced the offence.

(2) Whether, in proffering the inducement, the authorities had reasonable ground for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused had been charged.

(3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.

(4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.’”

We would answers those questions: (1), no; (2), yes; (3), yes; and (4), no.

“1. The learned trial judge failed to fairly and properly exercise his discretion to exclude the evidence of supply or stay the proceedings as an abuse of process and thereby put the defendant in the position of having to plead guilty to an offence in circumstances which offended against fairness.

2. The judge’s ruling that the undercover police officers had not incited, persuaded or cajoled the defendant into obtaining heroin for the officer “Ange” was contrary to the evidence placed before him. The agreed evidence showed that the police officers telephoned him on six separate occasions before he finally agreed to obtain drugs for “Ange”.

3. The learned judge ignored the fact the defendant repeatedly told the officers that he was not in the business of supplying drugs and that on the last contact before he helped [the] “Ange” obtain heroin, he not only told the officer that he was not in business but also that he had “sorted himself out” and was starting a new job on the Monday [which in fact he did].

4. The defendant was a man with no convictions for drug offences and was targeted because he was a known drug user.

5. The police officers admitted in evidence that they pretended they were addicts desperate for drugs and thereby exploited the sensitivity of a drug user towards another user in need.

6. The conviction is unsafe in that the trial process was vitiated by serious unfairness in that the officers clearly incited or persuaded the defendant to obtain heroin for “Ange”. The defendant’s right to a fair trial guaranteed by Article 6(1) of the European Convention on Human Rights was contravened. The judge should have ruled the evidence inadmissible or stayed the proceedings as they constituted an abuse of the process of the court.”

Ground 4

Ground 5

“The need for an authorised and bona fide investigation into suspected criminality is sufficient to show that the question of entrapment cannot be answered simply by asking whether the defendant was given an opportunity to commit the offence of which he freely availed himself. This is important but not enough. The matter is more complicated and other factors have to be taken into account. Likewise, I do not think that even the causal distinction can be answered by a mechanical application of a distinction between ‘active’ and ‘passive’ conduct on the part of the undercover policeman or informer. In cases in which the offence involves a purchase of goods or services, like liquor or videotapes or a taxi ride, it would be absurd to expect the test purchaser to wait silently for an offer. He will do what an ordinary purchaser would do. Drug dealers can be expected to show some wariness about dealing with a stranger who might be a policeman or informer, and therefore some protective colour and dress or manner, as well as a certain degree of persistence may be necessary to achieve the objective. And it has been said that undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise. A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary between causing the offence to be committed and providing an opportunity for the defendant to commit it.”

Here the judge concluded that undercover police did not cross that boundary. It was one that they had well in mind, as was exemplified by the evidence as to the reasons given for the six week gap between Sandie’s telephone calls, and those made by Mark and Ange, namely to keep the degree of persistence within proper limits.

Ground 3

Ground 2

Ground 1

Ground 6