Entrapment Law

Introduction

Entrapment refers to situations where state agents draw someone into committing an offence they would not have committed without that involvement. The idea is to stop authorities from creating crime rather than detecting it. How the law treats entrapment differs by jurisdiction.

• In England and Wales, entrapment is not a defence in itself. Instead, courts may stay the case as an abuse of process or exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE) if police conduct crosses the line.
• In the United States, entrapment is an affirmative defence based on inducement by government agents and the absence of predisposition.

Across systems, two themes recur: the nature of the inducement by authorities and the defendant’s predisposition to commit the offence before any contact with the state. Merely giving someone a chance to offend is usually lawful; pressuring or coaxing an otherwise unwilling person is not.

What You’ll Learn

• What entrapment means and how different systems treat it
• The two-part structure: inducement and predisposition
• UK approach: abuse of process, PACE 1984 s78, and fairness under Article 6 ECHR
• US approach: how predisposition is assessed and who has to prove what
• How courts draw the line between lawful stings and unlawful incitement
• Leading cases: R v Looseley, Teixeira de Castro v Portugal, Jacobson v United States, Smurthwaite & Gill
• Practical steps for raising or resisting an entrapment claim
• Typical evidence and disclosure issues in undercover operations

Core Concepts

Two Approaches: UK/ECHR (conduct-focused) vs US (predisposition-focused)

• England and Wales (and the European Court of Human Rights)

  • Focus is on the conduct of the authorities and the fairness of the trial.
  • If officers or informants incite an offence, the court can:
    • Stay proceedings as an abuse of process (rare but possible), or
    • Exclude evidence under PACE 1984 s78 because its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
  • Proportionality matters: officers may test a suspect by offering an ordinary opportunity, but should not apply pressure, exploit particular weaknesses, or increase the seriousness of offending.

• United States

  • Entrapment is an affirmative defence. The key question is whether the defendant was predisposed to commit the offence before the state’s involvement.
  • Once the defendant produces some evidence of inducement, the prosecution must usually prove predisposition beyond reasonable doubt.
  • Predisposition can be shown by prior conduct of a similar kind, readiness to commit the offence without persuasion, or quick acceptance of the proposal.

Inducement vs Mere Opportunity

Inducement is more than setting a trap. The following tend to suggest improper inducement:

• Repeated requests after refusal, badgering, or pressure
• Exploiting a known vulnerability (addiction, poverty, mental health issues)
• Offers of unusually large rewards or other extraordinary incentives
• Threats, intimidation, or appeals to sympathy that overwhelm free choice
• Escalating the seriousness of the crime beyond what the suspect was inclined to do

By contrast, providing a simple chance to commit an offence, without pressure or extraordinary incentive, is usually acceptable. Examples:

• A test purchase where an officer asks once to buy contraband from someone already trading
• A decoy or undercover profile where the suspect initiates illegal steps
• Agreeing to a plan already suggested by the suspect

Courts assess the overall picture. The more persistent or manipulative the state’s actions, the more likely the court is to find improper inducement.

Predisposition in Practice

Predisposition is about the defendant’s state of mind before contact with the authorities. Useful indicators include:

• Prior offending or patterns of similar conduct (bearing in mind fairness and admissibility)
• Whether the idea originated with the defendant
• Speed and enthusiasm of the response to an ordinary opportunity
• Evidence the defendant was already seeking to commit the same kind of offence
• Evidence of reluctance, refusal, or hesitation, and how it was overcome

In US cases, predisposition is central. In the UK, predisposition is relevant to whether the police acted proportionately: if someone is already offending, testing them with a standard request is more likely to be acceptable than coaxing a reluctant, otherwise law-abiding person.

Procedure, Burden, and Remedies

• England and Wales

  • Defence applications:
    • Abuse of process (to stay the case) where police incitement made a fair trial impossible.
    • PACE 1984 s78 to exclude evidence obtained unfairly.
  • The judge considers all circumstances, including disclosure about the operation (notes, tasking, recordings), proportionality, and necessity. If evidence is excluded, the prosecution may have to offer no evidence.

• United States

  • The defendant raises entrapment with some evidence of government inducement.
  • The prosecution must generally prove predisposition beyond reasonable doubt.
  • If the jury finds entrapment, the verdict is not guilty.

Key Examples or Case Studies

R v Looseley; Attorney General’s Reference (No 3 of 2000) [2001] UKHL 53 (England and Wales)

• Context: Undercover officers arranged drugs purchases.
• Key point: Police may not incite crime; the court emphasised proportionality. Ordinary opportunities are permissible; pressure or manipulation is not.
• Outcome: Where incitement is found, the court may stay proceedings or exclude evidence under s78 PACE.

Teixeira de Castro v Portugal (1998) 28 EHRR 101 (European Court of Human Rights)

• Context: Undercover officers repeatedly approached the defendant and prompted him to obtain drugs.
• Key point: Police incitement breached the right to a fair trial under Article 6 ECHR because the offence was essentially created by the state.
• Application: UK courts consider Strasbourg guidance when assessing fairness and state-created crime.

R v Smurthwaite and Gill [1994] 98 Cr App R 437 (England and Wales)

• Context: Guidance on test-purchase operations and the admissibility of evidence.
• Key point: The court set out factors for judges to weigh, including whether officers merely provided an opportunity, the nature of any pressure, the suspect’s predisposition, and whether the method was necessary and properly supervised.
• Application: A helpful checklist for s78 PACE and fairness assessments.

Jacobson v United States, 503 U.S. 540 (1992) (United States)

• Context: After lengthy government pressure through mailings and schemes, the defendant ordered illegal material.
• Key point: The government must prove predisposition existed before its first contact; repeated pressure can create offending that would not otherwise have occurred.
• Application: Strong example of improper inducement overcoming an initial lack of predisposition.

Practical Applications

• For defence teams (England and Wales)

  • Seek early disclosure on undercover activity: tasking, risk assessments, authorisations (RIPA 2000/CHIS materials), logs, recordings, and any inducements offered.
  • Consider a Public Interest Immunity process to test withheld material; focus on whether material may show incitement or disproportionality.
  • Make an abuse-of-process application if the operation created the offence or involved undue pressure.
  • Run a PACE 1984 s78 application to exclude admissions or other evidence obtained by unfair methods.
  • Obtain evidence on the defendant’s reluctance, lack of prior involvement, or vulnerabilities that were exploited.
  • Prepare alternative submissions: even if the case is not stayed, exclusion of key evidence may leave the prosecution unable to proceed.

• For defence teams (United States)

  • Gather and present evidence of inducement: repeated requests, extraordinary rewards, or appeals that overcame resistance.
  • Show lack of predisposition before government contact: no similar prior offences, refusals, or hesitation.
  • Challenge prosecution evidence of predisposition and the use of prior acts for that purpose.
  • Seek appropriate jury directions on entrapment and the prosecution’s burden.

• For investigators and prosecutors

  • Plan operations to detect existing crime, not to create it. Keep requests limited and avoid pressure or large incentives.
  • Use proper authorisations and supervision (e.g., RIPA 2000 for CHIS). Ensure necessity and proportionality are recorded.
  • Preserve full records: contemporaneous notes, communications, and recordings. These can demonstrate that officers did not go beyond providing an ordinary opportunity.
  • Review evidence for fairness issues before charge. Where methods risk exclusion, reassess the case early.

• For judges

  • Scrutinise the necessity, proportionality, and supervision of the operation.
  • Consider whether the idea originated with the defendant, the presence of pressure or manipulation, and the defendant’s reluctance.
  • Decide on stay or exclusion where admitting the evidence would compromise fairness.

Summary Checklist

• Identify who started the idea: suspect or state agent
• Assess the method: one-off chance or pressure, persistence, or manipulation
• Check for vulnerabilities exploited by the operation
• Map the timeline: predisposition before first contact or created after pressure
• In England and Wales: consider abuse of process and s78 PACE
• In US cases: ensure the jury is directed on inducement and predisposition
• Secure full disclosure of undercover notes, authorisations, and recordings
• Record refusals, hesitation, or reluctance; these often prove decisive
• Watch for escalation by officers in seriousness or quantity
• Use case law: Looseley, Smurthwaite & Gill, Teixeira de Castro, Jacobson

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