What is sting operation?

Legality of a 'Sting' Operation (English Law)

• In 1940, MI5 instigated a sting operation. Their target was prosecuted and found guilty of the offence. How does this stack up under English law? (The usual disclaimers can be taken as read.)

• Answer:

  Here's your answer at last, Bryan. Sorry about the delay. Actually, I think the new improved Google Answers allows you to respond to a clarification request while the question is locked, but maybe it was temperamental today. In 1929, the first-ever public consideration of police powers was undertaken by a Royal Commission on Police Powers and Procedure. They defined "agent provocateur" as "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 an offence". They stated that policemen should not act as agents provocateurs. Of course this doesn't actually define "enticing" as thoroughly as a lawyer might wish. Lord Hoffman has pointed out: "For example, it has been said that a policeman or paid informer should not act as an agent provocateur; an expression used to signify practices employed by foreigners unacquainted with English notions of decency and fair play: see para 104 of the Report of the Royal Commission on Police Powers and Procedure (1929) Cmd 3297. But what exactly is an agent provocateur? The Royal Commission said that he was "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." This is helpful so far as it goes, but one still has to say what amounts to enticing and what it means to say that the breach of the law would not otherwise have been committed. In other words, the definition assumes but does not define the standards of decency and fair play with which the activity of the agent provocateur is contrasted." http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011025/loose-2.htm Despite these criticisms, the agent provocateur definition seems a useful statement for our purposes, making it clear that what we generally call entrapment was thought to be unethical by a Royal Commission, chaired by the eminent Viscount Lee of Fareham, well before 1940. A similar view was expressed by some judges in the decade after World War Two. A case from 1948, in which the judge admonished the police and adjusted his sentencing accordingly, is seen as important in the legal history of entrapment. "The House [of Lords in 1980] said that the only constitutionally proper way in which the court could mark its disapproval was by admonishing the police (as Lord Goddard CJ had done in Brannan v Peek [1948] . . and Browning v JWH Watson (Rochester) Ltd [1953] . .) and by imposing a light or nominal sentence. It was for the police authorities to take disciplinary action or prosecute policeman or informants who took part in the crime." http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011025/loose-2.htm "Mid-twentieth century Lord Chief Justices, who could not possibly have been regarded in their own times as modern liberals, made trenchant observations against the practice of entrapment, plainly intended as practice directions to police. [...] No?one who read Lord Goddard CJ's words [in 1948] about the dislike for such [evidence in] this country should think that the attitude of the courts towards agents provocateurs is different in principle from what it was then". http://www.chethams.co.uk/westlondon/WLSSTALKbyPatrickCurrenQCendnotes.htm ================ None of this refers to MI5, of course. As you probably know, they were not subject to any statutory regulation before 1989, and have been described as having had no statutory existence. In the wartime climate a judge's sense of fair play in a case involving the security services might have been quite different from his feelings about entrapment in other circumstances. After all, the mood of the times allowed the Emergency Powers (Defence) Act, 1939, to state that "Any Act of Parliament may be amended, suspended or applied with or without modification." In theory, the police could have prosecuted anyone suspected of incitement, conspiracy or acting as an accomplice. This was the only way of regulating entrapment except for internal regulation from within the police or MI5. "Throughout both World Wars and the Cold War, the work of the service set the boundaries on which the Security Service Act based its provisions in 1989." http://www.bbc.co.uk/crime/fighters/mi5.shtml Today, evidence collected through entrapment may be ruled inadmissible in court, but at that time the situation was simply one of the police policing themselves and deciding whether to prosecute anyone else. "Traditionally it was for the police authorities to take disciplinary action or prosecute police officers or informants who took part in the crime." http://www.freebeagles.org/articles/entrapment.html#a Since the Police and Criminal Evidence Act (1984), judges have the discretion to exclude evidence obtained "unfairly". Entrapment in itself is no defence in English law. ================= Links to a glossary of legal terms: Incitement http://www.kevinboone.com/lawglos_incitement.html Conspiracy http://www.kevinboone.com/lawglos_conspiracy.html An accomplice "who aids, abets, counsels, or procures the offence." http://www.kevinboone.com/lawglos_accomplice.html ================= Links to other pages I looked at which may have further snippets of interest: "The judicial response to entrapment in this country before R v Sang [1980] AC 402 can be summarised as follows. Entrapment attracted expressions of judicial disapproval, notably by Lord Goddard CJ in Brannan v Peek [1948] 1 KB 68, 72, and Lord Parker CJ in R v Birtles [1969] 1 WLR 1047, 1049, but it did not furnish a substantive defence . . " http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011025/loose-1.htm "Despite the fact that the courts have strongly disapproved of the use of agent provocateurs to entrap defendants, entrapment is no defence in domestic law." SUBTERRANEAN BLUES: THE FUTURE OF COVERT POLICING http://www.criminalbar.co.uk/lectures/lec7.cfm "The degree of guilt may be modified by the inducement, and that can appropriately be reflected in the sentence: See [...] Browning v JWH Watson (Rochester) Ltd [1953] where Lord Goddard CJ pointed out that the court could even grant an absolute discharge in such circumstances." http://www.austlii.edu.au/au/other/crime/Taouk.html "Before 1989, there was no statutory regulation of the Security Service, nor even any statutory recognition of its existence." http://www.dca.gov.uk/foi/bakerfin.pdf I do hope this is useful. Please take me up on the usual offer of clarification if there is anything I could add which would be helpful. I'd be glad to do my best for you. Best wishes - Leli search terms: Entrapment, "agent provocateur", MI5, security service, police, English law wartime, world war, WWII, 1940s "before 1984" "before 1989" Police and Criminal Evidence Act (1984) Security Services Act 1989 Emergency Powers (Defence) Act, 1939