The Incitement Rules Undercover Police Officers Must Follow To Obtain Evidence

The Rules of Incitement

Entrapment

Agent provocateur, which is French for “inciting agent”, is an entrapment situation in which a person is enticed, incited or encouraged to commit a criminal offence which they wouldn’t have committed otherwise.

How does it relate to criminal law?

It is common for the police to use undercover officers when it comes to drug related offences. These officers may obtain evidence by getting to know local drug users as well as the suppliers who they buy drugs from. 

If the officer asks the suspect for drugs is he an agent provocateur, is he an “inciting agent”?

It is argued by some that the officer, in this case, would be an agent provocateur and that the person wouldn’t have supple drugs had the officer never asked. The difference is between the officer causing the offending and the officer simply providing an opportunity for the crime to be committed with the officer rather than another person.

What have the courts said, and Is it a defence?

Although entrapment is not a defence, it could be argued that there shouldn’t be a case as a result of it.

This would involve a consideration as to just how much persuasion there was and the weight of the offence. The question of exclusion of evidence may also arise.

In the case of Shannon it was said that if there is good reason to question the credibility of the evidence given, then the judge may conclude that the evidence should be excluded.

Two leading cases involved the supply of drugs to an undercover police officer. It was argued by “L” that he had been lured into supplying.

The Court concluded that if officers were to provide a person with an unexceptional opportunity to commit a crime and they then freely took advantage of that opportunity then that could provide acceptable evidence.

The situation would be viewed much differently and would be an abuse of process if officers instigated an offence by offering inducements and enticing a person into a course of action they would have not followed otherwise.

In “G’s” case the actions of the officers, in comparison, were said to go beyond those of undercover agents as they instigated the offence, there was no evidence to suggest that without their intervention it would have been committed, no evidence existed to suggest that without their actions the crime would have still been commited.

In a case involving an undercover journalist (Shannon v UK), it was said that an offender was not entrapped when he supplied drugs to the journalist as he had not been placed under any pressure to do so.

Do undercover officers have rules to follow?

There is an Undercover Operations Code of Practice issued jointly by all UK police authorities and HM Customs and Excise.

How can we help?

We are experts at assessing evidence and putting forward legal arguments. We can advise you as to whether entrapment applies to your case or not.

If you would like to discuss any aspect of your case, please contact Morton’s Solicitors on 0161 477 1121 or [email protected]