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"Discuss the relationship between judicial discretion and the power to stay proceedings as an abuse of power, specifically in regards to evidence obtained through entrapment and undercover operations."
This essay will critically examine the concept of entrapment in relation to judicial discretion and the courts' power to stay proceedings. It will also discuss the relationship between these two aspects. The increasing use of entrapment as a method within criminal law can be seen as part of a global trend in investigative practices, which range from coercion to deception.
While entrapment is not a legal term, its dictionary meaning involves concepts such as "catching," "ensnaring," "entangling," and "trapping." In the context of law, it is often defined as "when a state agent, typically a law enforcement officer, lures or causes someone to commit an offense so that they can be prosecuted for it." This term encompasses various proactive investigatory techniques, including "sting" operations, the use of "agent provocateurs," and even more narrowly focused situations like "test purchases," which involve selling alcohol to minors without proper identification.
Despite various case law examples, the entrapment doctrine has been proven to be based on deceit.
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It serves two purposes: recognizing the court's inherent power and responsibility to prevent abuse of its process and upholding the rule of law by preventing misuse of power. The courts are vital in ensuring that citizens are not oppressed by acting as a barrier between the state and its citizens. This is particularly evident in drug-related situations where entrapment becomes necessary to gather information due to the influence of those involved in distributing drugs on users' offenses.
However, limitations within the doctrine can be observed in the Looseley/AG Ref case, which requires balancing public interest fairness with individual fairness.
The principle of integrity justifies the prohibition of entrapment in order to safeguard the criminal justice system's integrity and prevent any violation of the rule of law. It is essential for courts, as protectors of human rights and the rule of law, to refrain from using evidence obtained through methods that infringe upon these rights. In English law, entrapment is not considered a valid defense according to R v Sang case; however, it may be regarded as a mitigating factor at most. Lord Diplock emphasized that even if another person, such as a police officer, is involved, it does not absolve the main offender from guilt.
The second part of the decision in Sang has now been reversed by section 78 PACE 1984, granting the court the authority to exclude evidence if it could negatively impact the fairness of the proceedings and should not be admitted. To analyze the correlation between judicial discretion (S78 PACE) and stay of proceedings in entrapment cases, we must examine the combined appeals of Loosely and Attorney General's Reference, No 3 of (2000), which both address the entrapment doctrine and its effective remedies. Although each case has its own unique circumstances, they both illustrate why it was approached differently, considering whether the outcome was positive or negative.
The defendant Looseley appealed against their conviction for supplying a Class A substance to an undercover officer named "rob". The conviction stemmed from an undercover police operation prompted by concerns over drug trade at a public house. At the pub, someone had provided "rob" with the defendant's name as a potential source of drugs. The trial judge refused to halt the prosecution as an abuse of process, or to exclude "rob's" evidence under section 78 of PACE 1984. However, the House of Lords later dismissed this decision. They determined that "rob" had not encouraged or induced Looseley to supply the substance, and that "rob" had acted lawfully within their powers due to reasonable suspicion surrounding the public house as a focal point for drug trade. Therefore, this case highlighted that, despite entrapment, it was considered reasonable. In contrast, in the Attorney General's Reference No3 of (2000), the defendant faced charges of supplying a Class A drug.
The trial judge halted the proceedings, ruling them an abuse of process. This was due to the discovery that the undercover police officer who received the heroin had enticed the defendant with cheap cigarettes. Despite evidence that the defendant was not truly interested, he agreed to supply heroin as a favor. The judge based this decision on the European ruling in Teixeira de Castro v Portugal (1999). In that case, there were no reasonable grounds to suspect the defendant of engaging in criminal activities, nor was he known to be involved in such matters. However, it was the actions of the officers that ultimately led him to commit the offense.
The commission of the offence was accompanied by inducements that are not typically associated with it. This instance can be considered an example of entrapment, which is deemed negative, outrageous, and unreasonable. The case of Looseley demonstrates that the appropriate remedy for an abuse of process caused by egregious entrapment is to stay the proceedings. However, it was also acknowledged that Section 78 might still be applicable in cases where tainted evidence could be excluded without undermining the prosecution. Additionally, a clear distinction was made between Looseley's willingness to provide heroin to undercover officers acting as regular customers and the enticements faced in AG REF.
The court stayed the proceedings in the latter case because the distinction between "luring" a defendant and offering them an "opportunity" is not based on the extent of freedom of choice, but rather on the nature of the inducement presented, as stated in Nottingham City Council v Amin. In these cases, the appropriate standards of police behavior are more challenging and require a closer examination of their conduct. The former case, Looseley, involved ordinary undercover work to catch criminals, while the latter case, AG REF, went too far in testing the susceptibility of regular citizens. The "unexceptional opportunity" principle in Looseley can be firmly rooted in the aim of evidence law to promote the legitimacy of verdicts.
The evidence obtained by provoking a crime may be completely reliable in proving the defendant's guilt. However, promoting a crime that would not occur otherwise undermines the fundamental purpose of criminal law. If the only reason for the crime is that it was orchestrated by government officials who should uphold the law, a guilty verdict cannot serve as a message that the values of criminal law should be respected. Consequently, the state loses its moral authority to assign blame and punishment to the defendant.
The prevention of the prosecution benefiting from evidence acquired in this manner is justifiable. Both leading cases on entrapment have been discussed. As a result, there is now a clear understanding of the available remedies for entrapment, which include judicial discretion under S78 PACE and a stay of proceedings. Prior to examining these remedies, it is important to distinguish between the two. It has been firmly established that evidence gathered through undercover police operations may be excluded under section 78 PACE if deemed necessary to uphold fairness in the proceedings. This provision ensures the exclusion of evidence that could disproportionately impact the fairness of the trial and result in unfair treatment of the defendant in obtaining evidence, potentially undermining the legitimacy of the verdict.
It is indisputable that securing the correct decision and a fair criminal trial are goals of the criminal justice system. One potential threat to the fairness of the proceedings is the encouragement of the jury to convict based on unreliable evidence. This issue arose in the Looseley/AG ref case, where it was discovered that Section 78 had a broader application than previously demonstrated in the R v Sang case. Consequently, it was presumed that Section 78 encompasses considerations that extend beyond mere evidence reliability.
Before the evolution of Section 78 of the Police and Criminal Evidence Act 1984, the legal position was very different. The case of R v Leatham acknowledged that evidence, no matter how it was obtained, even through theft, could be admissible in court. Thus, the manner in which evidence was obtained did not raise doubts about the overall trial effect or its reliability. This interpretation aligns with the plain meaning of the words used in Section 78 and is acknowledged to be ambiguous. Additionally, prior to the case of Sang, evidence could be excluded at the judge's discretion if entrapment would be inconsistent or indirectly allow admission of the defense.
This was established as the judge's responsibility to ensure a fair trial for the defendant by preventing unfair use of evidence during the trial. This justification is based on the goal of protecting the defendant's privilege against self-incrimination. In the 1980s, significant cases regarding confession evidence, such as R v Mason and R v Conale, witnessed a shift towards utilizing section 78 to address violations during police investigations. It was then recognized that section 78 could be useful in excluding improperly obtained evidence. The leading case in this area is now R v Smurthwaite, where the court provided a non-exhaustive list of factors that a court may consider when deciding whether to exercise its discretion to exclude evidence.
The text raises several questions regarding the actions of the officer acting as an agent provocateur. Firstly, it questions the extent of the officer's enticement towards the defendant to commit an offense they would not have otherwise committed. The uncertainty of how much importance should be given to this factor is also highlighted. Secondly, the text asks about the nature of any entrapment, suggesting that certain types may be deemed more acceptable than others. However, no guidance is provided on this critical matter. Lastly, it considers the level of activity on the officer's part in obtaining evidence, implying that a more active role may make the exclusion of evidence more justifiable. Yet, the absence of guidelines on what constitutes a passive role can be subject to criticism.
Regarding Smurthwaite, the Court of Appeal (COA) concluded that there was no entrapment, but acknowledged that Section 78 had expanded judicial discretion to exclude prosecution evidence, potentially including cases involving entrapment. It is understandable that judges generally refrain from excluding improperly obtained evidence, as fairness to the proceedings is closely linked to fairness to the public.
Recently, the Court of Appeal seems to have adopted a more limited approach to discretionary exclusion. In the case of R v Shannon, the Court of Appeal determined that the judge had correctly concluded that there was insufficient evidence to establish incitement or instigation of the offenses. However, the Court also made remarks indicating that the discretion to exclude evidence should only be exercised when there are doubts about its reliability. Although these remarks were not legally binding, they align with the current judicial approach to section 78 and signify a significant reduction in the scope of the approach taken in Smurthwaite.
Another issue within section 78 (S78) is the concept of legitimacy. According to the theory, S78 can be used to exclude evidence with the aim of preserving the moral authority of a guilty verdict. This means that if any evidence, obtained directly or indirectly through impropriety, exists, it could be deemed invalid. However, if there is other truly independent evidence pointing towards guilt, it is not clear whether a guilty verdict would be considered illegitimate. Completely preventing a conviction in these circumstances might not adequately consider the crucial goals of punishing the guilty and advocating for the rights of the victims. If the untainted evidence is unrelated to police misconduct, is enough to secure a conviction, and the defendant has not been negatively affected by the misconduct to the extent that a fair trial is still feasible, then it would be preferable for the court to weigh the conflicting aspects of public policy. Subsection (1) of S78 further complicates matters as it establishes discretion as a key factor.
The assessment is highlighted by the use of the phrase "may". For the sake of fairness, the word "shall" should be substituted for "may". However, legislators have chosen not to take this route, and this discretion formulated in 1984 still applies in English law of Evidence. Therefore, it can be argued that the court has given too much power to defendants. The use of "may" also supports the argument that even if evidence is stolen, there are no guarantees for its exclusion, making the court's use of s.78 comparable to using a sledgehammer to crack a nut. Although s78 exists as a remedy, it may not always be appropriate and is considered problematic. It should be noted that using s78 may still allow the trial to continue and the defendant may still be convicted based on other untainted evidence.
An application of the abuse of process doctrine would prevent the possibility of excluding evidence from an undercover operation. The exclusion of evidence may or may not lead to the trial being prevented altogether. The significance of the evidence to the prosecution’s case would determine whether its exclusion would have this effect. Nonetheless, the House of Lords has determined that under certain circumstances, improper conduct during an undercover operation may directly result in the court preventing the case from proceeding altogether. This outcome would be achieved by the court exercising its judicial discretion to stay the proceedings as an abuse of the process.
In R v Latif and R v Shahzad, two cases involving drugs, the court examined the issue of remedies in relation to the importation of heroin. One of the cases, Shahzad, involved a Customs officer who imported the drugs rather than Shahzad himself. The court acknowledged that if it always stayed proceedings in such cases, it would be criticized for not protecting the public from serious crime. Conversely, if the proceedings were never stayed, it would give the perception that the court condones illegal behavior by law enforcement agencies. This would undermine public confidence in the criminal justice system and damage its reputation. Therefore, it is inappropriate to take either extreme stance. Instead, a balanced approach should be taken.
The first consideration for the court is whether the impugned conduct would render a fair trial impossible. If this is the case, the proceedings must be automatically stayed. The focus here is on whether the conduct would compromise the trial's ability to properly determine guilt or innocence. In this particular case, it was evident that a fair trial was possible and did take place. In such instances, the second question arises: should the judge still stay the proceedings despite a fair trial being possible, based on the belief that it would be against the public interest in maintaining the integrity of the criminal justice system for the trial to continue? Ultimately, this decision lies with the judge, who must determine if there has been an abuse of process that goes against public conscience and requires the criminal proceedings to be stayed.
In order to exercise discretion, the court must engage in a balancing exercise by weighing the public interest in ensuring that individuals accused of serious crimes are tried against the public interest in not giving the impression that the court approves of any means to attain their goals. The cases of Latif and Shahzad established that in undercover police operations, the trial judge has the power to either exclude evidence or halt the proceedings entirely, based on their discretion. However, the specific relationship between these different judicial measures was not adequately clarified.
The major decision of the House of Lords on entrapment in R v Looseley; A-G’s Reference (No 3 of 2000) followed years after Latif ; Shahzad. It was confirmed that while there is no substantive defence of entrapment in English criminal law, proof of improper entrapment in a specific case should result in a stay of the proceedings. If a stay is not ordered based on improper entrapment, the evidence of the agent provocateur may still be excluded under section 78 to maintain the integrity of the judicial system. However, although the courts have embraced this approach, there are still criticisms against it.
Emphasis is placed on an "exceptional opportunity" for the defendant to commit the offense in the approach, which could have implications. This could potentially lead to discriminatory application of the entrapment doctrine, as individuals involved in criminal activities may have less of a chance to argue entrapment compared to those who do not belong to such a world. As a result, the extent of section 78's clarity remains unclear following the Looseley; A-G's Reference case.
Both R v Latif and R v Shahzad have highlighted a problem in the legal system, as they have established that the abuse of process doctrine can be employed in entrapment cases alongside the section 78 discretion. The availability of two remedies simultaneously can cause confusion and ambiguity as to which one would be more appropriate. Although Lord Hutton acknowledged this issue in the judgement of Looseley, he did not provide an explanation as to why both remedies are allowed, which has led to criticism of his decision. This situation is peculiar, and it may be necessary to consider reforming or providing further clarification on the doctrine of entrapment regarding this issue.
The case of Teixeira de Castro v Portugal demonstrates how exclusion and stays are used to ensure consistency between English law and international law. In R v Looseley; A-G’s Reference (No 3 of 2000), the Lords in Looseley developed the principles to align English law with the requirements of the ECHR- Article 6. The Lords deemed the decision right on the facts, highlighting that the authorities had no valid reason to suspect the defendant of drug trafficking. Therefore, the principle applied by the European Court does not differ from the current English approach to entrapment. However, it can be argued that while English discretion is recognized in theory, in practice, the fundamental values of upholding and protecting human rights during criminal investigations are overlooked within a discretionary framework that heavily focuses on crime control.
The relationship between judicial discretion and the power to stay proceedings is that a stay of the prosecution is the suitable solution when there is an accusation of entrapment. This is because if s78 is used to exclude evidence that was obtained improperly, the defendant could still be convicted. However, a stay of proceedings would prevent this from happening as it would be considered an abuse of the court's process to prosecute someone based on entrapment.
There is a close relationship and potential overlap between judicial discretion and a stay of proceedings. If a defendant's application to stay a prosecution is denied, the court still has the discretion to exclude the evidence under s78. However, what is significant is that for the first time in England, there is an articulate and authoritative judicial consideration of entrapment that acknowledges non-convictions as a remedy - similar to other jurisdictions. Also, what is unique about Looseley; A-G's Reference is that it presents a rare occasion in which an English court determines that a stay of proceedings for entrapment is the appropriate judicial response in a specific case.
Examining Judicial Discretion in Entrapment Cases. (2016, Oct 03). Retrieved from https://studymoose.com/judicial-discretion-essay
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