Vigilante Entrapment in alleged paedophile cases
The Court of Appeal held in R v TL [2018] EWCA Crim 1821 that reliance on the evidence gathered by an internet vigilante group did not amount to an abuse of process, on 31st July 2018.
In an important ruling the court confirmed the high threshold for the use of judicial discretion to stay proceedings where an offence has been incited using deceptive techniques as part of a private informant entrapment operation, i.e. by non-state actors.
Evidence from vigilantes known as ‘paedophile hunters’ was used to charge suspects in England and Wales on at least 150 occasions in 2017; a sevenfold increase since 2015.
Defendants invariably argue that deploying ‘decoys’ (by vigilantes posing as children in internet chat rooms) amounts to entrapment and are an abuse of process. Put simply, that members of vigilante groups incite offences when otherwise no offence would have been committed.
The defence successfully made this argument in the trial of TL. Mr. U, a member of the vigilante group ‘Predator Hunters’, posed as ‘Bexie’, a 14-year old girl in a legitimate adult chat room. Bexie sent a photograph of herself after a request by Mr. L. After further messages, Mr. L arranged to meet Bexie to have sex with her and his girlfriend. The vigilante group attended Mr. L’s home address with the police who arrested him.
The trial judge determined that that Mr. U’s entrapment of Mr. L undermined public confidence in the integrity of the judicial process to such a degree that the proceedings against Mr. L were unfair and ought not continue. The central question for the Court of Appeal was whether the judge was correct to terminate the proceedings as he did.
The lead authority on entrapment incited by law enforcement agencies, i.e. state actors, is the House of Lords’ decision in Looseley and Attorney General’s Reference No 3 of 2000 [2001] UKHL 53, [2001] 4 All ER 897. In a well-known passage, Lord Nicholls giving the first judgment observed:
It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts…The role of the courts is to stand between the state and its citizen and make sure this does not happen…The difficulty lies in identifying conduct, which is caught by such imprecise words as lure or incite or entice or instigate. If police officers acted only as detectives and passive observers, there would be little problem in identifying the boundary between permissible and impermissible police conduct. But that would not be a satisfactory place for the boundary line…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 considering the distinction between acceptable and unacceptable conduct, Lord Nicholls commented:
[A] useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime…whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime…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… [emphasis added]
In TL, the Court confirmed these principles applied and that the judge’s approach allowed no distinction between the conduct of Mr. U, as a private citizen, and state actors.
Significantly, the appeal court made clear that there was no impropriety on the part of Mr. U that made it inappropriate for the prosecution to proceed.
Whilst Mr. U may not have had sufficient information to support a reasonable suspicion that the website in question was being used for grooming purposes, he was pointed in the direction of the site by others with an interest in suppressing illegal conduct. Crucially, the Court considered that if the police had behaved as Mr. U behaved, their conduct would not have supported a stay for abuse.
The decision in TL makes clear that there is no ‘defence’ of entrapment and that only in rare situations would applications to stay proceedings be successful. The Court did not give any prescient examples, but it seems likely applications may succeed where there has been serious improper conduct on the part of the private citizen. Defence challenges otherwise concerning the fairness of prosecution evidence will have to be advanced using the statutory provision under PACE.
