In Syed  EWCA Crim 2809 the Court of Appeal restated the approach that ought to be taken when a defendant applies to stay proceedings as an abuse of process on the basis that he was lured into committing criminal offences by agents of the State. In doing so, the court considered whether the principles enunciated by the House of Lords in the leading case of Looseley  UKHL 52 are compatible with Article 6(1) of the European Convention on Human Rights (“Article 6(1)”).
The applicant, Haroon Ali Syed, pleaded guilty before HHJ Topolski QC to the preparation of terrorist acts contrary to s. 5(1) of the Terrorism Act 2006 and was sentenced to life imprisonment with a minimum term of 16 years and 6 months. Between 13 April 2016 and the applicant’s arrest on 8 September 2016, Security Service officers posing as “Abu Yusuf”, communicated with the applicant via social media. The Crown’s case was that during these online conversations, the applicant engaged in what he believed to be the purchase of weapons, a bomb, and target research for an attack in the UK. The Crown placed reliance upon: (1) a schedule of the online communications between 13 April 2016 and 6 September 2016, running to 876 entries; (2) meetings between “Abu Yusuf” and the applicant on 29 May 2016 and 1 September 2016, together with a 40 second sound recording of the 29 May meeting and an audio recording of the September meeting; (3) the applicant’s application to his bank for a loan on 9 August 2016, which he told “Abu Yusuf” was for the purpose of buying weapons; (4) the applicant’s comments to police officers when he was arrested, that the password for his phone was “ISIS. You like that?”. Importantly, the Crown did not rely on any material that was subject to PII, nor did it rely upon any ex parte material in support of its response to any of the arguments advanced on behalf of the applicant.
The defence case was that the applicant had been targeted and groomed online by three named individuals. These individuals had actively sought to entice the applicant into radical Islam and put him in touch with a role player i.e. “Abu Yusuf”. The applicant was addicted to violent video games and, when he participated in the online conversations, he neither regarded it as a real plan nor had any intention of committing a terrorist act. An application was made under s. 8 of the Criminal Procedure and Investigation Act 1996 (“CPIA”) for disclosure relating to the undercover operation. The Crown stated that there was nothing further to disclose. The applicant invited the judge to superintend the process and, at the applicant’s request, an ex parte hearing was held. No further disclosure was ordered.
The applicant applied to the judge for a stay of proceedings and/or for the evidence of the conversation to be excluded pursuant to s. 78 of the Police and Criminal Evidence Act 1984. He did so on the basis that the offence was brought about by state agents and that he had therefore been subject to entrapment. In what the Court of Appeal characterised as an impressive ruling, HHJ Topolski QC refused both of these applications. In doing so, his Honour treated the burden of proof as being on the applicant to demonstrate that he had been lured into committing a criminal offence by agents of the state.
The applicant applied for leave to appeal on the following grounds:
- The relevant English law on entrapment is derived from Looseley rather than Article 6(1).
- The jurisprudence of the European Court of Human Rights (“the Strasbourg jurisprudence”) on Article 6(1) now enjoins a different approach to entrapment.
- The judge applied the common law test in declining to stay proceedings and/or exclude the evidence of the online communications.
- Had the judge applied Article 6(1), the outcome would or, at least, arguably could, have been otherwise.
- Applying s. 2 of the Human Rights Act 1998 the judge was prima facie obliged to apply Article 6(1).
- Looseley remains binding as a matter of domestic law until overturned by the Supreme Court.
- The Court of Appeal should (a) grant leave to appeal; (b) dismiss the appeal; (c) certify a point of law of general public importance, pursuant to s. 33(2) of the Criminal Appeal Act 1968; (d) grant or refuse leave to appeal to the Supreme Court, which was in a position to consider the continued correctness of Looseley and the safety of the conviction.
- The applicant’s guilty plea did not prevent such a course from being followed.
The Court of Appeal’s judgment
Dismissing the application for leave to appeal, the Court of Appeal (Gross LJ, William Davis and Garnham JJ) restated the principles which apply when a stay is sought on the basis that the defendant has been lured into committing crimes by agents of the state. As a preliminary point, the court accepted that the defendant’s guilty plea did not preclude him from now appealing on the issue of a stay. Turning to entrapment, the court stated that the rationale for the recognition of the doctrine of entrapment derives from two principles, namely that the integrity of the court must be maintained and that the purity of the administration of justice must be preserved. The elements relied upon in considering whether to grant a stay must be linked to the rationale for the doctrine. The court quoted extensively from Looseley, in which Lord Nicholls observed that the investigatory technique of providing an opportunity to commit crime was intrusive and should not be applied in a random fashion. Nor should it be used for random “vitue testing”. In what has become an influential paragraph, his Lordship stated that a useful guide to the meaning of “state-created crime” was to consider:
“… whether the police did not more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word ‘unexceptional’… (emphasis added).”
Lord Nicholls stated that the court must have regard to all the circumstances of the case, including the reason for the particular police operation. Whilst having reasonable grounds for suspicion is one way good faith may be established, it is not always essential. His Lordship stated that sometimes suspicion may be centred on a particular place, and that random testing may be the only practicable way of policing a particular activity. Reference was made to the leading Strasbourg case of Teixeira de Castro v Portugal (1999) 28 EHRR 101 and it was held that English law was compatible with the principles enunciated by the Strasbourg court. In relation to whether the subject of the undercover operation must be suspected of committing an offence, Lord Hoffmann in his opinion stated that the requirement of reasonable suspicion does not necessarily mean that there must have been suspicion of the particular person who committed the offence. His Lordship stated that it was legitimate for the police to provide an opportunity for the commission of an offence which is taken by someone to whom no suspicion previously attached. The suggestion that the Strasbourg case law dictated a different approach was rejected as depending upon an “excessively literal and technical analysis of some of the language used by the court”.
In the Court of Appeal’s analysis of the most recent Strasbourg jurisprudence, it observed that the Strasbourg court appeared to have held that the burden of proof is on the state to prove that there was no entrapment, provided the defendant’s allegations are not wholly improbable. In Ramanauskas v Lithuania (2010) 51 EHRR 11 the Strasbourg court also stated that undercover techniques must be kept within clear limits and that a conviction based upon such techniques is acceptable, provided adequate and sufficient safeguards against abuse were in place. The Strasbourg court also observed that a crucial factor is whether the investigation was “essentially passive”. These points were echoed in Bannikova v Russia (2010) 18757/06, in which the Strasbourg court stated that it would rely on whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence.
Pulling the threads together, the Court of Appeal held that, with the possible exception of the burden of proof, Looseley remains compliant with the requirements of Article 6(1). The court arrived at this conclusion for the following reasons:
- The rationale underlying the common law approach and the Strasbourg court’s approach is essentially the same. It involves the integrity of the criminal justice system and the principle that the ends do not necessarily justify the means. The use of undercover techniques does not, of itself, violate the right to a fair trial. The right to a fair trial must not, however, be sacrificed on the grounds of expediency.
- Working definitions of entrapment are essentially the same in both approaches. To the extent there are distinctions, they are not material.
- Efforts to contrast meaningful distinctions between the two approaches on the basis of an unduly literal reading of the language of judgments are misplaced and to be discouraged. When the Strasbourg court referred to state agents acting in an “essentially passive” manner, it could not be taken to mean that they were to be confined to being passive observers only. Such an analysis would be wholly unrealistic. Whilst it is necessary to guard against random virtue-testing, this does not necessarily require the state to have grounds for suspecting a particular individual.
- There is no material conceptual difference between the requirements for proper disclosure in English law and the Strasbourg jurisprudence. The fact that s. 7 of the CPIA placed the prosecutor under a continuing duty of disclosure is an important safeguard.
In respect of whether the Strasbourg jurisprudence places the burden of proof upon the prosecution, the Court of Appeal stated that it was not clear from the relevant cases the extent to which this is in fact the position. The court stated that, since there was no entrapment on these facts, further exploration of this issue would have to await a case where it was necessary for the decision. The court also stated that, since no point was taken below as to whether the undercover operation mounted against the applicant was properly authorised or supervised, this precluded the issue from being raised at the appellate stage. Applying the principles on entrapment to the facts of the case, the Court of Appeal concluded that the online communication between the applicant and “Abu Yusuf” conveyed the “irresistible inference” that he already had it in mind to commit an offence before contact was ever made with the undercover officer. There was nothing, said the court, to call into question the good faith of the Crown or to suggest that this operation constituted an example of random “virtue-testing”. There was therefore not even an arguable case of entrapment on the facts. The Security Service officer had done no more than provide the applicant with an “unexceptional opportunity” to commit the crime and had maintained an essentially passive role throughout his interaction with the applicant. For example, the applicant had made the loan application without any prompting from “Abu Yusuf”.
The court refused the application for leave to appeal, concluding that there was no arguable case of entrapment on the facts and no arguable case that there is any material difference between the approach in Looseley and the Strasbourg jurisprudence.
As Lord Steyn stated in Latif  1 WLR 104, the issue of whether the defendant would have committed the particular offence of which he was convicted but for the conduct of state agents poses the “perennial dilemma” of how to draw the dividing line between acceptable and unacceptable police conduct. The difficulty lies in identifying conduct which is caught by such imprecise words as “lure” or “incite” or “entice” or “instigate”. The fundamental question is how much of a causal nexus there must be between the defendant’s commission of the offence and the conduct of the state agents. The delineation between acceptable pro-active conduct and unacceptable “virtue-testing” is difficult to draw with any degree of precision. The Court of Appeal’s judgment in Syed highlights the contextually sensitive nature of this enquiry. The court’s judgment is helpful in clarifying that the approach taken by the House of Lords in Looseley, in which focus was placed upon whether the defendant was presented with an “unexceptional opportunity” to commit an offence, is compliant with Article 6(1). As the court recognised, it would be unhelpful to take on overly literal approach to the Strasbourg jurisprudence. Doing so would, for example, preclude police officers from posing as children on online chatrooms in an effort to uncover those who have a sexual interest in children. Such an approach would be untenable, as it would hinder law enforcement efforts to an unacceptable degree. As the Court of Appeal recognised, what characterises the approach taken by both domestic courts and the Strasbourg court is flexibility. For example, failure to have reasonable grounds to suspect the subject of the undercover operation does not necessarily mean that it would be entrapment to present him with an unexceptional opportunity to commit a crime. The touchstone appears to be whether the state agents played a passive role. If so, there will be no entrapment. This is also a question of degree, which highlights the futility of attempting to draw bright lines in this area.
There is an important point that provides the foundation for the Court of Appeal’s conclusion that the process which led to the defendant’s conviction was Article 6(1) compliant. In Edwards and Lewis v UK (2005) 40 EHRR 24, the applicants contended that they had been the victims of entrapment. Crucially, the trial judge – who decided the issue of entrapment – had seen evidence, withheld from the defence but on which the prosecution relied in the course of a PII heading. The Strasbourg court found a violation of Article 6(1) on the basis that the procedure adopted by the trial judge to determine the issue of entrapment had paid insufficient attention to the requirements to provide adversarial hearings and equality of arms. The Strasbourg court accepted that the right to disclosure is not absolute, but stated that the rights of the defence must only be restricted to the extent that this is strictly necessary. In this case, however, the Crown did not rely on any evidence that was withheld from the defence; there was no PII hearing and no reliance was placed on any ex parte material. Edwards and Lewis was a case decided before the House of Lords established the governing principles and safeguards which apply to PII hearings in H  UKHL 3. It is therefore possible that the Strasbourg court would take a different approach today to the one that was taken in Edwards and Lewis. The emphasis the Court of Appeal placed on the fact there was absolute parity in this case strongly suggests that, in future, the Crown ought to evaluate carefully whether to rely upon ex parte material in a case involving an undercover operation. Unless this is strictly necessary, compliance with Article 6(1) would appear to demand parity between the prosecution and defence.
As the Supreme Court recognised in Horncastle  UKSC 14, the supranational nature of the Strasbourg court and the fact that English criminal procedure differs so significantly from that in other signatories to the Convention means that there are times when the court pays insufficient regard to how the principles it articulates would apply in the UK. This is not one of them, however, as there is a convergence between Strasbourg law and domestic law. There is one respect in which they different, however, namely the burden of proof. As the Court of Appeal recognised, the Strasbourg court’s case law on this issue is far from clear. It would therefore have been wrong for a domestic court to pre-empt a conclusive determination from the Strasbourg court on this issue. The Strasbourg court will have to provide clarification, however, which means that this will not be the last time the Court of Appeal has to consider whether domestic law on entrapment conforms with Article 6(1).