Proactive Intelligence-Led Policing Shading the Boundaries of Entrapment: An Assessment of How Common Law Jurisdictions have Responded

Abstract

Law enforcement agencies have adapted their detection and investigative strategies in accordance with proactive intelligence-led policing of suspected offenders that include surreptitious undercover methods. While such measures are necessary and proportionate to safeguard society from harm caused by offenders, some forms of proactive policing methods could be regarded as entrapment. Allegations of entrapment are typically raised in circumstances where undercover law enforcement officers have actively participated in the creation of a crime, have tested the virtue of people instead of directing their detection and investigative strategies on persons against whom there are reasonable grounds for suspicion, or have gone beyond merely creating the circumstances and effectively induced the suspect to commit an offence. Criminal justice systems have typically responded to allegations of entrapment with judicial discretion to grant a stay of the prosecution for an abuse of the courts process, relying on judicial integrity and the imperative of constitutional principles and international human rights standards being adhered to by courts of justice. Undercover methods bordering entrapment might require the exercise of judicial discretion to either exclude impugned evidence or as a mitigating factor reducing the sentence imposed on convicted offenders. This article evaluates the judicial responses to successful pleas of entrapment in foremost common law jurisdictions underpinned by constitutional principles of due process and international human rights standards in accordance with the rule of law. Keywords: Abuse of process; Agent provocateur; Defence; Entrapment; Exclusion of evidence; Judicial discretion; Stay of criminal proceedings