At what stage does incitement to commit a criminal offence by a newspaper reporter become unfair entrapment? BBC Radio 2 DJ, Johnnie Walker, was the latest in a series of tabloid ‘sting’ operations which targeted, among others, London’s Burning actor John Alford; the Earl of Hardwicke and the former England rugby captain, Lawrence Dallaglio.In Walker’s case, as in others, the sting took the following form: journalists, posing as wealthy Arab businessmen, entertain their target in a hotel room or apartment by offering them liberal amounts of champagne or wine, while making promises of highly lucrative future business contracts. The conversation is directed towards the aspect of the target’s private life that the journalists hope to expose, usually the use of controlled drugs. Meanwhile, hidden video cameras and microphones surreptitiously record the unfolding events. These sting operations raise a number of legal and ethical questions. For example, who decides the target and on what grounds? Can a defendant’s constitutional right to a fair trial be guaranteed when the newspaper in question publishes all the evidence (and much ‘evidence’ that is inadmissible at the subsequent hearing) before trial to a readership in excess of 10 million people? Of the three who were actually prosecuted following drug entrapment operations, the prosecution’s returns have diminished sharply.
John Alford was sent to prison for nine months (although he was released early). The Earl of Hardwicke, following a plea for leniency by the jury, received two years (suspended for two years, and subject to appeal), and Johnnie Walker a fine of £2,000 after he pleaded guilty to possession of a small amount of cocaine.
Prejudicial pre-trial publicity In recent weeks, journalists have criticised the growing judicial unease at the tabloids’ increasing desire to resort to entrapment. Their argument overlooks the prejudicial, pre-trial defamatory publicity concerning the entrapped accused that inevitably follows, usually without warning before trial and often in front-page sensational terms. Also overlooked is the fact that there is little or no evidence that the defendants have ever before committed the specific offences with which they are now charged. Very serious questions arise over the use of tabloid evidence by the police/CPS when deciding when to prosecute, particularly when not just one, but a series of prosecutions have taken place at the behest of a particular tabloid newspaper.
The inherent problem is that while the tabloids, when acting in this manner are effectively police informers, the same journalists and newspapers would appear not to be subject to any meaningful police/CPS control, judging at least from the adverse pre-trial publicity they routinely generate except for subsequent contempt proceedings which rarely take place. It must also be asked whether it is ever right to incite (not ‘induce’) a person to commit an offence, especially one for which there was no evidence to suggest the target had ever offended before. For reasons given below, it is clear that Europe will not readily allow the police/CPS to entrap their targets, so is it right for the police/CPS to make use of such evidence supplied by the tabloids in order to start a prosecution? One argument advanced in favour of thepolice/CPS is their duty to investigate and prevent crime, and prevention of crime can be a justification, in principle, for contravening an individual’s right to privacy as enshrined in Article 8 of the European Convention on Human Rights (ECHR) . It is unattractive, in my view, for journalists to rely on the same argument. The ‘agent provocateur’ The classic definition of the ‘agent provocateur’ is one who, having enticed another to commit an offence, then informs on him. At common law, it is not a defence to argue that you would never have committed an offence, “but for” his (the ‘agent’s') activities, and evidence obtained in this way would be admissible at trial. With the introduction of Section 78 of the Police and Criminal Evidence Act 1984, a trial judge may now exclude such evidence at their discretion. In exercising that discretion, the judge must take account of the ECHR and decisions arising from this. Although the Human Rights Act 1998 has still to be brought into force, the courts will take into account ECHR principles. The Director of Public Prosecutions has an obligation to pursue a case only if, after all things considered, a prosecution is in the public interest, and a relevant aspect of the public interest is whether a case would be overturned on appeal by reason of enactment of the 1998 Act.
As clause 3.2 of the CPS’s code for prosecutors makes clear, review of the “evidential” and “public interest” tests is a continuing process and the CPS must take account of any change in circumstances.The ECHR (Texiera De Castro v Portugal 29 EHRR 101) discovered a violation of the right to a fair trial, in circumstances where two undercover policemen had actually enticed the accused to commit a criminal offence he would simply not otherwise have committed, “but for” their activities. This is similar to the pre-existing US approach. In that jurisdiction, the courts find offenders not guilty where led into offences by law enforcement agencies. Despite this, the US courts have found that entrapment does not extend to situations where the offender has merely been presented with the opportunity to commit the offence.
The English courts adopt this distinction, but at common law have no need to rely upon it.
Abuse of process
An abuse arises where events are such that it would be so unfair, or so wrong for the prosecution to continue. Specifically, where one is entrapped by an official body such as the police, the discretionary test for the judge to apply when considering a stay for abuse is a careful balancing exercise between the public interest and not conveying the impression that the court will adopt the approach that the end justifies the means.
The courts recognise the importance of proper investigative journalism if it is in the public interest, but draw a clear distinction with that activity and the role of the police. It is one thing for the police to make use of information concerning an offence which is already laid on, but it is quite another thing to use an informer to encourage another to commit an offence of a more serious character, which he would not otherwise commit. It is considered to be a much more serious issue if the police themselves take part in carrying it out.
Indications as to the current approach
A considered ruling of His Honour Judge Pontius on 3 September 1999 (R v Thwaites and Hardwicke) is of great value in assessing how the courts currently apply the law to these issues. When passing sentence on the Earl of Hardwicke, Judge Pontius unusually received and read a note to him from the jury which said: “Had we been allowed to take the extreme provocation into account we would undoubtedly have reached a different verdict.” Notwithstanding this, the decision is not at all decisive, in that each case should be considered on its own facts, merits and surrounding circumstances, and consequently judicial interpretation may appear, from time to time, to differ. Furthermore, the CPS’s code expressly recognises that each case is unique. Even journalists themselves are beginning to feel uneasy. Roy Greenslade of The Guardian, in commenting on the Pontius ruling, concluded that if entrapment is “to have any future at all”, it must “be used sparingly, and in cases which are overwhelmingly in the public interest”. In imposing a small fine on the Walker case on 13 October, 1999, Magistrate Keating, in a Horseferry Road courtroom populated by numerous journalists, pulled no punches: “I don’t like the way they [News of the World] behaved one bit. I don’t like the filth they have written about you.” The courts continue to stress that the ends do not justify the means. Even if it is to continue, we are likely to see continued judicial discouragement of tabloid entrapment reflected, when appropriate, in any sentence passed. The CPS may be more reticent in the future to start such prosecutions, but until it addresses the activities of the journalists themselves, entrapment operations will continue and the activities of the amateur detectives of Fleet Street will remain, as now, discriminatory in their choice of targets and unpoliced. Simon Smith is a partner at Messrs Schilling & Lom and Partners. He represented (with Antony Chinn of 4 Brick Court) Johnnie Walker in the prosecution brought by the CPS following a tabloid sting operation. The views expressed are those of the author only, and not of his client.
