A law firm acting for Mazher Mahmood once described the law on private entrapment such as Sun on Sunday’s Fake Sheikh as “perverse” – in comparison to the law that “protects against the state causing citizens to commit illegal acts.”
David Sleight, a criminal lawyer for Kingsley Napley, under the title of ‘The Law Regarding Entrapment’ even citing actor John Alford’s case (a Fake Sheikh “sting”) wrote :
For defendants who commit crimes following entrapment by private parties, the abuse argument is much more difficult to sustain. In R v Shannon (aka Alford) which followed the infamous ‘fake-sheikh’ sting by the News of the World, the former London’s Burning actor was filmed supplying drugs to the undercover reporter. Shannon appealed against his conviction on the basis that the evidence was obtained unfairly under section 78 of the Police and Criminal Evidence Act 1984. In the Court of Appeal, Potter LJ stated that it is insufficient that the unfairness complained of relates to the fact that the defendant would not have committed the crime but for the incitement of others, unless the behaviour of the police or the prosecuting authority has been such as to justify an abuse of process.
In the 2010 article for The Law Society Gazette, he continues:
Therefore, the key issue in an application for a stay of proceedings on the grounds of abuse of process or exclusion of evidence under section 78 in entrapment cases is the conduct of the police or the prosecuting authority. The problem for defendants in private entrapment cases is that, unless there is some kind of criticism to be levelled specifically at the police or the Crown Prosecution Service relating to how the evidence was obtained, then any argument regarding exclusion of evidence or an abuse of process is likely to fail. After all, the Crown would argue that they are simply presenting the evidence as obtained by a third party in line with their duty to prosecute criminal offences. In most cases of private entrapment, the Crown would only become involved after the offence, and indeed after the entrapment, has taken place.
It appears perverse that, while the law protects against the state causing citizens to commit illegal acts, it does not protect against private parties doing the same thing, where often the participation of the private ‘entrapper’ goes beyond that which would be deemed appropriate by law enforcement officers. Many newspapers stings involve an expensive and targeted campaign on one individual, based on limited or no intelligence, where the inducement is persistent and the primary incentive is to sell newspapers, not to prevent crime.
Sleight also makes a passing reference to another Fake Sheik “sting” of Lord Hardwicke who like Alford, involved a meeting with Mahmood at Savoy Hotel, plying him with alcohol (Alford declined) and then asking him to supply cocaine.
In court, the jury convicted him of selling drugs but sent an unusual letter to the judge Timothy Pontius, saying that, in its opinion, Lord Hardwicke, sold the drugs only under “extreme provocation.”
Sleight writes: “It is clear that the jury in this case felt constrained by the law as it stands and believed that the entrapment in this case, which again involved the supply of drugs to an undercover News of the World reporter, affected the propriety of the conviction.”
The judge let the verdict stand, but ruled that Lord Hardwicke would not be sentenced to prison.
Sleight’s article was published weeks after defending Chelsea footballer John Terry’s father Edward who was facing a maximum of 14 years but the judge Christopher Mitchell sentenced Terry to a suspended prison term of six months and ordered him to do 100 hours community service and pay £95 costs.
The court had heard that the News of the World reporter, Dan Sanderson, had befriended Terry at a wine bar he frequented near his home in Essex, Unit 4, over a six-week period.
Sanderson, who was posing as a chauffeur, asked Terry where he could buy cocaine for his boss and his friend.
Terry said he could supply it and agreed a fee of £120 and also asked for £40 for facilitating the deal. He left Unit 4 and returned about 15 minutes later with the cocaine, which he handed over to Sanderson in the wine bar’s toilet.
Acting for Terry, lawyer, Neil Saunders, told Basildon Crown Court: “Mr Terry would not have acted in the way he did and committed this offence but for being enticed by the journalist who befriends Mr Terry, meets with him on a couple of dozen occasions at the minimum, simply for a tabloid story.”
In judgement, Judge Mitchell told the court: “It is a very, very clear case of entrapment solely to create a newspaper story,” as he spared Terry from a prison sentence.
“The facts in this case are highly unusual. In fact the offence was actually created by the actions of the newspaper sending a journalist to set you up. It is clearly an entrapment case and the only reason they did this was to create a story because of your connections to a well known footballer,” the judge added.
Sleight finishes his article with proposals to the Crown Prosecution Service with bullet points:
In light of the above there must be an onus on the CPS in private entrapment cases to carefully consider the circumstances surrounding the commission of the offence, and if appropriate, to exercise their discretion not to prosecute on the basis that it would not be in the public interest.
Unfortunately, once the CPS has decided that a prosecution should ensue, the remedies appear remote, even for clear cases of entrapment. The case law focuses on state-created entrapment but its application to private entrapment cases has not been thoroughly tested.
- Whether or not the undercover reporter did more than present an unexceptional opportunity to commit a crime;
- The reason for the particular sting operation. Is the reporter/newspaper acting in good faith and not, for example, as part of malicious vendetta against a particular suspect?
- The nature and extent of the reporter’s participation. The greater the inducement and the more forceful or persistent his overtures, the more likely that the conduct might have brought about commission of crime by a suspect who would normally avoid crime of that kind;
- The suspect’s criminal record. This will only be relevant if it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity.
*Kingsley Napely also defended Rebekah Brooks at her Old Bailey trial for phone hacking at News of the World.