Entrapment is a practice in which a law enforcement agent or an agent of the state induces a person to commit a crime that the person would have otherwise been unlikely or unwilling to commit.Sloane (1990) 49 A Crim R 270. See also agent provocateur. In US law, it is defined as "the conception and planning of an offense by an officer or agent, and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer or state agent".
Police conduct rising to the level of entrapment is broadly discouraged and thus, in many jurisdictions, is available as a defense against criminal liability. Sting operations, through which police officers or agents engage in deception to try to catch persons who are committing crimes, raise concerns about possible entrapment.Missouri Law Review, Volume 70, Issue 2, Spring 2005: Sting Operations, Undercover Agents and Entrapment: by Bruce Hay.
Depending on the law in the jurisdiction, the prosecution may be required to prove beyond a reasonable doubt that the defendant was not entrapped or the defendant may be required to prove that they were entrapped as an affirmative defense.
In the practice of journalism and whistle-blowing entrapment means "deceptive and trust-breaking techniques ... applied to trick someone to commit a legal or moral transgression".
Etymology and usage The word entrapment, from the verb "to entrap", meaning to catch in a trap, was first used in this sense in 1899 in the United States Court of Appeals for the Tenth Circuit case of People v Braisted.People v Braisted (13 Colo. App. 532, 58 Pac. 796)THE DEFENCE OF ENTRAPMENT IN THE FEDERAL COURTS LESTER B. ORFIELD
The 1828 edition of Noah Webster's American Dictionary of the English Language defines entrap as:
Canada The Supreme Court of Canada developed the doctrine of entrapment in three major decisions: R. v. Amato, 2 S.C.R. 418, R. v. Mack, 2 S.C.R. 903, and R. v. Barnes, 1 S.C.R. 449.
There are two different forms of entrapment in Canadian law.
Random virtue testing: This form of entrapment occurs when the police offer an individual the opportunity to commit a crime without reasonable suspicion that either that individual or where that individual is located is associated with the criminal activity under investigation. If police have such a reasonable suspicion, they are still limited to providing only an opportunity to commit the offence. Inducement of an offence: This form of entrapment occurs when the police go beyond merely providing an opportunity to commit an offence but actually induce the commission of the offense. Some factors a court may consider when deciding whether police have induced the offence include the type of crime being investigated, whether an average person would have been induced, the persistence and number of attempts made by the police, the type of inducement used (fraud, deceit, reward, etc.), and the existence of express or implied threats.
The question of entrapment is considered only after there has been a finding of guilt. If, after finding the accused guilty, the court determines that the accused was entrapped, the court enters a judicial stay of proceedings. That is similar to an acquittal.
History
In 2013, a British Columbia couple were found guilty of attempting to blow up the British Columbia Parliament Buildings. In 2016, the verdict was overturned because the couple were found to have been entrapped into the plot by the Royal Canadian Mounted Police.
It was the first time entrapment had been successfully argued in a terrorism case. Three previous attempts failed.
Germany In German law, it is normally forbidden§ 26 StGB to induce or persuade someone to commit a crime or to attempt to do so.§ 30 StGB, in German However, the German Federal Court of Justice has held that entrapment by undercover police agents is not a reason to stay the case per se.e.g. GA 1975, 333, 334. If undercover agents have been used without proper justification, punishment for the committed offense may be reduced.1st Senate's decision in 1 StR 148/84 - 23 May 1984.
In the case of persons who are not initially under suspicion and unlikely to commit a certain crime, a decision from 1999"18th of November, BGH 1 StR 221/99", in German stated that entrapment of such persons violates the right to a fair trial, and the punishment for the committed offense may thus be reduced.
United Kingdom England and Wales The main authority on entrapment in England and Wales, held to be equally applicable in Scotland, is the decision of the House of Lords in R v Loosely (2001). A stay is granted if the conduct of the state was so seriously improper that the administration of justice was brought into disrepute. In deciding whether to grant a stay, the Court will consider, as a useful guide, whether the police did more than present the defendant with an unexceptional opportunity to commit a crime.
In Loosely, Lords Hoffman and Hutton indicated certain factors that should be considered in deciding whether proceedings against a defendant should be stayed: Whether the police acted in good faith; Whether the police had good reason to suspect the accused of criminal activities; Whether the police suspected that crime was particularly prevalent in the area in which the investigation took place (Williams v DPP); Whether pro-active investigatory techniques were necessary because of the secrecy and difficulty of detection of the criminal activity in question; The defendant's circumstances and vulnerability; and The nature of the offence.
It has been held that it is generally acceptable for the police to conduct test purchases (DPP v Marshall) or pose as passengers to catch unlicensed taxi drivers (Nottingham City Council v Amin).
Historically, entrapment was common in the eighteenth and nineteenth century, and was used frequently by the Bank of England and Royal Mint to catch people involved in currency crime during the Restriction Period of 1797–1820.
Entrapment by plainclothes policemen was often used to prosecute gay men, even after the Sexual Offences Act 1967 exempted consensual gay sex in private from prosecution.
Scotland In Scotland the main authority is the case of Brown v HMA (2002) which stated that entrapment will occur when law enforcement officials cause an offense to be committed which would not have occurred had it not been for their involvement. The remedies available correspond with those in England and are considered to be either a plea in bar of trial or a challenge to the admissibility of evidence obtained through entrapment.
United States In the United States, two competing tests exist for determining whether entrapment has taken place, known as the "subjective" and "objective" tests. The "subjective" test looks at the defendant's state of mind; entrapment can be claimed if the defendant had no "predisposition" to commit the crime. The "objective" test looks instead at the government's conduct; entrapment occurs when the actions of government officers would usually have caused a normally law-abiding person to commit a crime.
Contrary to popular belief, the United States does not require police officers to identify themselves as police in the case of a sting or other undercover work, and police officers may lie when engaged in such work. The law of entrapment instead focuses on whether people were enticed to commit crimes they would not have otherwise considered in the normal course of events.
History Entrapment defenses in the United States have evolved mainly through case law.
Courts took a dim view of the defense at first. The New York Supreme Court said in 1864 that "[It] has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will".Board of Commissioners v. Backus, 29 How. Pr. 33, 42 (1864) cited in A fuller quote includes a reference to original sin. Even if inducements to commit crime could be assumed to exist in this case, the allegation of the defendant would be but the repetition of the plea as ancient as the world, and first interposed in Paradise: "The serpent beguiled me and I did eat." That defense was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment pass upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian ethics, it never will. Forty years later, another judge in that state affirmed that rejection, arguing "[courts] should not hesitate to punish the crime actually committed by the defendant" when rejecting entrapment claimed in a grand larceny case.People v. Mills, 70 N.E. 786, 791 (N.Y. 1904), cited at Lord, supra.
Other states, however, had already begun reversing convictions on entrapment grounds.See John D. Lombardo, "Causation and 'Objective' Entrapment: Toward a Culpability-Centred Approach", 43 UCLA L. REV. 209, 219-20 (1995). See, e.g., People v. McCord, 42 N.W. 1106 (Mich. 1889) Federal courts recognized entrapment as a defense starting with Woo Wai v. United States.Woo Wai v. United States Chin, Gabriel J., "The Story of Jacobson v United States: Catching Criminals or Creating Crime?", Arizona Legal Studies Discussion Paper N. 06-12, February 2006, retrieved 10 August 2006, 39. . This draft is described as a chapter in the author's forthcoming Criminal Law Stories. The U.S. Supreme Court declined to consider the question of entrapment in Casey v. United States,Casey v. United States since the facts in the case were too vague to definitively rule on the question; but, four years later, it did. In Sorrells v. United States, the Supreme Court unanimously reversed the conviction of a North Carolina factory worker who gave in to an undercover Prohibition officer's repeated entreaties to get him some liquor. It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials".Sorrells v. United States, 287 U.S. 435, 451.
In Sherman v. United States,Sherman v. United States the Court considered a similar case in which one recovering drug addict working with agents of the Federal Bureau of Narcotics (a predecessor agency to today's Drug Enforcement Administration (DEA)) solicited another to sell him drugs on the premise that his own efforts were failing. Again unanimous, its opinion focused more clearly on the defendant's predisposition to commit the offense and, on that basis, overturned Sherman's conviction as well since, although he had two prior drug convictions, the most recent dated back five years. Furthermore, he was attempting to rehabilitate himself, he had made no profit on the sales, and no drugs were found in his apartment when it was searched, suggesting the absence of a predisposition to break drug laws. "To determine whether entrapment has been established", it said, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal".Sherman v. United States, 356 U.S. 369, 375.