Sting Operations and Entrapment

In R v. Mack, (1998) 2 SCR 903 (Can SC), it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. The following factors determine whether the police have done more than provide an opportunity to commit a crime:
(1) The type of crime being investigated and the availability of other techniques for the police detection of its commission.
(2) Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime.
(3) The persistence and number of attempts made by the police before the accused agreed to committing the offence.
(4) The type of inducement used by the police including deceit, fraud, trickery or reward.
(5) The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity.
(6) Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship.
(7) Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction.
(8) The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves.
(9) The existence of any threats, implied or express, made to the accused by the police or their agents.
(10) Whether the police conduct is directed at undermining other constitutional values.
In the United Kingdom, the defence of entrapment is not a substantive defence as observed in R. v. Sang, 1980 AC 402, by the House of Lords:
“The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence, but under the English system of criminal justice, it does not give rise to any discretion on the part of the Judge himself to acquit the accused or direct the jury to do so, notwithstanding that he is guilty of the offence.”
However, a shift in judicial reaction appears to be emerging which is clearly discernible in R v. Looseley, (2001) 1 WLR 2060, wherein the House of Lords found that:
“ A prosecution founded on entrapment would be an abuse of the court’s process. The Court will not permit the prosecutorial arm of the state to behave in this way.
Entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the State’s involvement in the circumstance in which it was committed.” Rajat Prasad v. Central Bureau of Investigation, (2014) 6 SCC 495.

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