Comparative Criminal Law (Utrecht University, 2016/2017): Working Group 3: Entrapment/incitement. 

Assignments Comparative Criminal Law 2016-2017

Working Group 3 (21 and 23 March 2017)

Question 1a:

Analyse the decisions in US v. Russell, Loosely v. R and Bannikova v. Russia answering for each decision the following questions: Which are the most relevant facts? How and by which criteria or considerations - does the court consider whether there has been ‘entrapment’?

Answer to Question 1a:

1. US v. Russel:

• Facts: Russel was charged in three counts of a five-count indictment returned against him and codefendants Connolly. He was convicted of all three counts of having unlawfully manufactured and processed speed and of having unlawfully sold and delivered that drug in violation of the US law. On appeal, the United States Court of Appeals reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the speed which formed the basis for respondent’s conviction. The undercover agent had visited the home of the respondent. The assignment of the agent was to locate a laboratory where the speed was manufactured illicitly. He told the respondent that he was from a company that was interested in controlling the manufacture and distribution of speed. He made an offer to supply the defendants with an essential chemical ingredient in the manufacture of the speed, in return of half the drugs produced. Connolly gave the agent a big sample of the speed and they viewed the agent the laboratory. The day after, the agent supplied Russel and Connolly with the ingredient, and the morning after the manufacturing of the speed was finished. Sometime later, the agent returned to the house with a search warrant and arrested Russel and Connolly. Russel was found guilty by the Court.

• Criteria & considerations: the initiative of the agent. the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been an ‘intolerable degree of governmental participation in criminal enterprise’. In this case the Court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defence.

      Focus: predisposition of the defendant.

If you already had the intention, then there is no entrapment! If you didn’t, there is entrapment. You try to look into the mind of the defendant, whether he had that intention (subjective). It was clear that he would have made the drug anyway.

2. Loosely v. R:

• Facts: (par. 84). The appellant and another defendant named Harris had supplied heroin to an undercover police officer known as Rob. The police officer wanted to buy heroin from the appellant. He bought drugs several times. Rob got the phone number and the name of the appellant. There was a suspicion that the drugs was being sold in that area, a public community house. They got the number of Loosely there and he bought the drugs from Loosely.

• Criteria & considerations: Agent must not be an agent provocateur (par. 49). This is a person who entices another to commit an express breach of the law which he would not otherwise have committed, and then proceeds or informs against him in respect of such offence.

• Providing opportunity: police must act in a general way (par. 23, 53, 101). If you go further, probably everybody would commit a crime. This is an exceptional opportunity, it should be quite normal. It may not be an exceptional opportunity, because everybody would have done it then (for example, offering 1000 euros to a cab driver to take them somewhere).
• The suspect must freely take advantage of the opportunity provided by the police, so voluntarily. The defendant would have behaved in the same way if the opportunity had been offered by anyone else. (par. 101).

Caution is needed, because it is not always possible to have a specific person in mind who manufactures or sells drug. You need a ground of a suspicion. You have to have a certain general suspicion to check people randomly.

• Proportionality
• Subsidiarity
• Supervision

3. Bannikova v. Russel:

• Facts: The applicant had some telephone conversations with S. and agreed that he would supply her with cannabis which she would then sell (par. 4). The telephone conversations were recorded by the Federal Security Service (FSB).

The FSB started an undercover operation in the form of a test purchase, and bought 4,408 grams of cannabis from the applicant (par. 8). This was also filmed and recorded by the agent. After the purchase, the applicant was arrested and her house was searched; the FSB found another 28,6 grams of cannabis in her home (par. 8). The applicant pleaded guilty for having assisted the FSB agent in purchasing the cannabis, but she claimed that she had been induced by that agent to commit the offence, and that she would not have committed it without its intervention (par. 9)

• Considerations & criteria:
• Substantive test & Procedural test: The substantive test: was there entrapment or not and is this a violation of the Convention. Procedural: Violation? But not violation because of entrapment, but not having an adequate procedure. It only focused on the violation. One of the two is enough. Als er entrapment is, dan is er een schending van het verdrag en hoef je de procedural test niet meer te doen. Als dit niet duidelijk is, moet je deze wel doen. Dan wordt vastgesteld of er wel een effectieve procedure is gevoerd om te onderzoeken of er entrapment was.  Als deze er niet was, dan is het alsnog een schending.

SUBSTANTIVE

• Par. 34: If there is police incitement, the evidence may not be used in court. This is the starting point. Then there come exceptions in par. 35: there is a difference in entrapment and legitimate undercover techniques.
• The question must be asked whether the offence would have been committed without the authorities intervention (par. 37).
• The Court examined the reasons underlying the covert operation and the conduct of the authorities carrying it out. The question is whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence (par. 38).

This must be established according to these criteria:

• Whether the suspect has a criminal record;
• Whether the suspect has been subject before to preliminary investigations;
• Whether the drugs were found at the home of the suspect;
• Whether the suspect carried drugs with him (par. 39, 40).

• The police may join in, but not instigate (par. 43).
• Supervision (par. 43, 49, 50).

The authorities must be able to demonstrate at any stage that they had good reasons for mounting the covert operation. If the States’ role is limited, whether the authorities take the initiative which could lead to incitement.
According to par. 69, Article 6 of the Convention will only be complied with if the applicant was effectively able to raise the issue of incitement during his trial, whether by means of an objection of otherwise. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable (par. 70).

PROCEDURAL:

If it is impossible to determine whether there was entrapment. You will then look at the procedure whether there is a violation anyway (par. 51, 52). You will have to examine whether the courts dealt with the applicant’s plea of incitement. When there is no disclosure, the procedural aspect becomes decisive (par. 52). The European Court must be satisfied that the domestic courts’ capacity to deal with such a complaint in a manner compatible with the right to a fair hearing (par. 54). It should therefore verify whether an arguable complaint of incitement constitutes a substantive defence under domestic law, or gives grounds for the exclusion of evidence, or leads to similar consequences.

According to par. 69, Article 6 of the Convention will only be complied with if the applicant was effectively able to raise the issue of incitement during his trial, whether by means of an objection of otherwise. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable (par. 70).

The domestic courts may choose their own procedure (par. 55), but is must be adversarial, thorough, comprehensive and conclusive on the issue of entrapment (par. 57). These guarantees are indispensable in the determination of an agent-provocateur claim (par. 58).

A conviction in a domestic court does not mean that there was no entrapment. The Court will consider this for herself (par. 60). When there is entrapment, this will lead to disclosure of all evidence (par. 62).

Question 1b:

Try and find in the case law for this week the answers to the following questions for the US, England and under the ECHR:

• What is the legal qualification of entrapment?
• What procedural requirements apply if the defendant at trial states that he has been entrapped?
• What is (are) the legal consequence(s) if entrapment is established and who has to decide on this?

1. US v. Russel

• Legal qualification: the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been an ‘intolerable degree of governmental participation in criminal enterprise’. In this case the Court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defence.
• Procedural requirements: Intention of the suspect, they don’t focus on the conduct of the law enforcement agencies (subjective approach).
• Legal consequences: Dismissal of criminal prosecution, acquittal.

2. Loosely v. R.

• Legal qualification: Entrapment is 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. This is simply not acceptable.
• Procedural requirements: Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted.
• Legal consequences: A defendant is excused, not because he is less capable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catch-phrase, statement-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience.

Excluded evidence, judicial disapproval (121, 16)

3. Bannikova v. Russia

• Legal qualification: ‘’Police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves  to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution.’’ (par. 37).
• Procedural requirements: According to par. 69, Article 6 of the Convention will only be complied with if the applicant was effectively able to raise the issue of incitement during his trial, whether by means of an objection of otherwise. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable (par. 70).The defendant should have the right to challenge the evidence.
• Legal consequences: Inadmissibility of the evidence. You can choose.  

Question 2a:

Having answered the previous questions, can you explain why the US approach of entrapment is called ‘subjective’, whereas the European Court’s approach is considered to be mostly ‘objective’?

Answer to Question 2a:

The United States approach is subjective, because it’s about the intention of the defendant and not about the conduct of the police in the subjective system. The Court is mostly objective when the Courts examines only the intention of the suspect, and the conduct of law enforcement is not important. When the approach is mostly objective, the intention of the suspect, but also conduct of the police is important. Mostly conduct of the police, but also the intention is important in this case: both sides need to be considered.

Question 2b:

How would you qualify the English approach?

Answer to Question 2b:

The United Kingdom Court’s approach is objective, the Court looks only at the conduct of the police. It checks whether there has been conduct of law enforcement, which leads to entrapment. The intention of the defendant is not important.

Question 3a:

All in all, which are the most important differences and similarities between the three approaches?

Answer to Question 3a:

Some differences between the different systems are, that the United States’ focus is subjective, while the UK approach is objective and the European Court is mostly objective. In addition, the European Court has more a procedural approach afterwards. The case is already determined by the domestic courts, and the European Court checks the outcome of the case. Other systems do not have an afterward procedure, because the cases are considered by domestic courts.

A similarity between the different Courts is that the European Court and the UK Court both look at conduct of law enforcement, while the United States Court does not do so.

Question 3b

Which court offers defendants the most extensive protection from entrapment and why?

Answer to Question 3b:

The Courts that are most protective are the European Court and the UK Court. These Courts both protect the ‘unwary criminal’. In the United States, only the ‘unwary innocent is protected, not the ‘unwary criminal’.

On the other hand, the United States Court offers more protection when it comes up to the conclusion that there has been entrapment. If there has been entrapment, there is always acquittal of the defendant. In the other systems this is not the case; these Courts can still continue with the case. The entrapment does not necessarily lead to acquittal.