S78 and 76 Pace

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“With regards to evidence obtained by entrapment and undercover operations, critically discuss the relationship between judicial discretion and the power to stay proceedings as an abuse of power”

This essay will critically examine entrapment in the light of judicial discretion and the courts power to stay proceedings. It shall also critically discuss the relationship between the two. The increasing use of entrapment within criminal law may be viewed as part of a global trend in investigations ranging from coercion to deception. Entrapment in itself is not a legal term of art, although in relation to its dictionary meaning it is merely to “catch”, “ensnare” “entangle” and to “trap”. However, in its widest occurrence with the law it is often described as “when an agent of the state, usually a law enforcement officer lures/ causes someone to commit an offence so that he may be prosecuted for it”. The term itself encompasses a wide range of proactive investigatory techniques ranging from “sting” operations to issues of “agent provocateurs” and even within its narrowest sense-“test purchases”-such situations could include circumstances where minors have been sold alcohol without full identification. Nevertheless, it has been illustrated through various case law that; deception is at the core of the doctrine of entrapment. The rationale behind the doctrine of entrapment is two-folds. Firstly, it illustrates that “every court has an inherent power and duty to prevent abuse of its process...” in which practically the doctrine of entrapment works “to prevent the abuse of power”. Thus, fundamentally, the courts are upholding the rule of law. It is a vital role of the courts to ensure that the citizens of the state are not oppressed; it is the role of the courts to stand between the state and its citizens to make sure this does not happen. This is dearly seen in situations involving drugs-because within the drugs trade it is portrayed as a vicious circle (those who deal the drugs then influence those who take the drugs to commit offences) therefore the only way any information could be gathered would be through entrapment, however there are limits within the doctrine itself as seen in the case of Looseley/AG Ref. Evidently the court have to make sure that they balance out the fairness of the public interest and the fairness of the individual. Secondly, and an equally prominent rationale is the integrity principle in which a prosecution based on entrapment should be haltered in order to “protect the integrity of the criminal justice system” as to not violate the rule of law, because it is stipulated as a principle of consistency and it would be inconsistent for the courts, as guardians of human rights and the rule of law, to act on evidence obtained by methods which violate such rights. Entrapment within English law is seen to have no substantive defence as stipulated in the case of R v Sang. However, it is only seen to be a mitigating factor and no more- as Lord Diplock illustrated that “although many crimes are committed by one person at the instigation of another, whether it is a police officer; this can not affect the guilt of the principal offender”. The second part of the decision in Sang has now been reversed by section 78 PACE 1984. Now the court has the power to exclude evidence if the court considers its admission would have an adverse effect on the fairness of the proceedings- and that the court ought not to admit it. In order to critically analyze the relationship between judicial discretion (S78 PACE) and stay of proceedings within entrapment, we will have to consider the conjoined appeals of Loosely and Attorney Generals Reference, No 3 of (2000) which have both been explicit about the entrapment doctrine and its sufficient remedies. Although each case stands on its own facts, both cases exemplify the rationale as to why it was considered differently- giving attention to the aspect of it being a positive or a...
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