Not too long ago an officer I know was sat in his unmarked vehicle on a car park at a local supermarket. Looking around he noticed a well known criminal, let’s call him Billy, loitering about. Knowing it was likely Billy was up to no good he continued to watch and did not have to wait long before Billy proved his instincts correct. Billy sidled up to an unattended car, broke in and began removing items from the glove box.
Unfortunately for Billy no sooner had he done so he found himself tackled to the ground and placed under arrest. A short trip to the cells later, Billy was interviewed but protested his innocence claiming he was a victim of ‘entrapment’.
What is entrapment though and why was Billy very much not a victim of anything other than his own stupidity?
In England and Wales, entrapment is where a person has been enticed into committing an offence that they otherwise would not have committed. To claim that a person has been the subject of entrapment is to say that police have provoked them into the commission of a crime. It is to say that they have not broken the law voluntarily, that the circumstances have been engineered to ensure their guilt.
Arguments about entrapment can be relevant both when it comes to obtaining evidence relating to an offence which has already been committed and also in securing evidence for crimes that have not yet happened.
When it comes to deciding whether evidence should be excluded because it has been obtained by entrapment, the courts will consider things such as how difficult a particular offence is to detect and whether the crime investigated is particularly prominent is a certain area. Evidence obtained through a degree of entrapment is not automatically excluded, it is down to the court to decide the necessity for the police’s course of action.
As entrapment involves enticing someone to break the law, simply providing them with an opportunity to do so is not likely to qualify as entrapment. This means that undercover ‘sting’ operations – sending scruffy-looking officers to buy drugs off a street trader for example – would not amount to entrapment as the officer has done no more than given the dealer an opportunity to ply his trade, allowing him to voluntarily break the law in the process.
So was Billy the victim of a cruel police entrapment? He hadn’t been provoked into breaking into the car, nothing has been set up to ensure he did so and the fact that he did it right in front of a police officer was his own misfortune. A victim of entrapment he was not.