Court of Appeal tacitly condones entrapment by conscientious vigilantes

On 31st July 2018, the Court of Appeal handed down Lord Burnett CJ’s judgment in the case of R v TL [2018] EWCA Crim 1821^[1], which was a successful appeal by the Prosecution to overturn a terminating ruling by the trial judge in Nottingham to stay a prosecution for abuse of process due to entrapment by a vigilante paedophile hunter. Despite published police concerns about vigilantes jeopardising prosecutions^[2], this judgment sets a precedent for prosecutions to survive abuse of process applications where vigilantes do no more than merely provide the opportunity for Defendants to commit offences, mirroring the rule for police officers.

The Defendant in TL faced a single charge alleging that he had attempted to meet a child following sexual grooming. A man referred to as “Mr U” ran a group called “Predator Hunters”: one of numerous vigilante groups across the country dedicated to the exposure of paedophiles using the internet to groom children. Mr U set up a profile on the “Say Hi” chatroom depicting himself as a 14-year-old girl. The chatroom was for over-18s only, which Mr U circumvented by inputting a 1999 date of birth before putting up a profile stating: “Hiya am just your average 14-year-old girl looking to meet new friends.” The Prosecution’s case was the Defendant initially sent Mr U’s fake account a message, asking “her” whether she was looking for sex and wanted a threesome with a 22-year-old man (himself) and a 19-year-old female (his partner). The response was “Hey am 14 so I’m very inexperienced”. This did not deter the Defendant who proceeded to arrange a meeting at his flat, but instead of the “girl” turning up, Mr U attended with police whereupon the Defendant was arrested.

At the conclusion of the Crown’s case, the Defence successfully applied to stay the prosecution for abuse of process due to entrapment, leading the Prosecution to appeal the terminating ruling.

Court Of Appeal Decision

The Defence relied on the House of Lords case of R v Looseley [2001] UKHL 53 when successfully inviting the trial judge to stay the prosecution for abuse of process. Looseley concerned police conduct which provided the Defendant with an opportunity to supply drugs to an undercover officer. The House of Lords noted that a balance was required to uphold the rule of law by convicting and punishing those who committed crimes, whilst also preventing law enforcement agencies from acting in a manner which offended the public conscience and notions of fairness. It was re-stated that “the end does not always justify the means”. Whilst each case depended on its own facts, the principle to be applied to police conduct is that it would be unfair and an abuse of process if a person had been lured, incited, or pressurised into committing a crime which they would not otherwise have committed. However, it would be different if a police officer behaved as an ordinary member of the public and gave a person no more than an unexceptional opportunity to commit a crime and that person freely took advantage of the opportunity.

In TL, the Prosecution submitted that the trial judge had erred in applying the standards in Looseley to an instance in which a civilian had engaged with the Defendant, rather than a police officer.

In paragraph 32 of Lord Burnett CJ’s judgment, the Court of Appeal recognised that in both domestic^[3] and European^[4] jurisprudence, the conduct of a civilian may in theory found a stay of proceedings as an abuse of process. However, the Court of Appeal also noted that there had been no reported criminal appeals^[5] in which civilian activity has founded a successful application for a stay, stating that in such cases, “Given the absence of state impropriety, the situations in which that might occur would be rare”.

Accordingly, in TL the Court of Appeal granted the Prosecution’s appeal to lift the stay, noting that Mr U had committed no offences in the course of his vigilante conduct which led to the Defendant’s arrest, and at no time did he induce the Defendant to commit an offence. However, Lord Burnett CJ noted that such conduct is “far removed from a case of incitement in the sense of one person pushing another towards committing an offence which he would otherwise not commit, for example by badgering someone to engage in unlawful sexual or other activity.”

In paragraph 35 of Lord Burnett CJ’s judgment, the Court of Appeal provided the following guidance to be followed when considering whether the conduct of a vigilante would amount to an abuse of process: “A starting point in considering whether the conduct of a private citizen should result in a stay of proceedings is to ask whether the same, or similar, conduct by a police officer would do so. A precise comparison may be difficult because when the police or other state investigators or prosecutors act in this way, they do so subject to codes of conduct and strict hierarchical oversight. Of course, great care would need to be taken to do no more than give an opportunity for others to commit offences, but that is what Mr U did.”

The standards for police officers were stated by Lord Hutton in Looseley to be as follows, approving McHugh J’s ruling in the Australian High Court case of Ridgeway v The Queen 184 CLR 19: “I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters:

1. Whether conduct of the law enforcement authorities induced the offence.
2. Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.
3. Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.
4. Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.”

Though the above guidance has been provided by the Court of Appeal as a starting point when assessing the conduct of a private citizen, requiring a comparison between the civilian’s conduct and police standards, the Court of Appeal in TL did not elaborate as to how much more egregious a civilian’s conduct would need to be before it could properly be regarded as an abuse of process for a prosecution to proceed. The Court of Appeal in TL did not need to provide further guidance, having decided on the facts that even “If police officers had engaged in broadly similar conduct an application to stay the proceedings as an abuse of process should have failed.” Therefore, the judgment in TL leaves scope for future Defendants to apply to stay a prosecution in which a civilian did more than merely provide an opportunity for the Defendant to commit an offence.

Conclusion

The Court of Appeal’s judgment in TL means that, despite police concerns about vigilante paedophile hunters potentially jeopardising prosecutions, trials should safely avoid stays for abuse of process so long as civilians do not go too far. Though the Court of Appeal took pains to express that “[39] we do not seek to undermine or contradict the stated position of the police, by which they discourage private individuals from setting out to identify those who groom children and arrange to meet them for sexual purposes”, it remains to be seen whether this judgment will encourage civilian paedophile hunters to continue their vigilante activities, notwithstanding clear police disapproval. Though Lord Burnett CJ cautioned that “It would be much better for those in Mr U’s position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate”, the effect of this judgment is that the actions of conscientious vigilantes will be less likely to thwart prosecutions, contrary to police warnings.

For future trials involving entrapment by a civilian, this Court of Appeal judgment may be cited by the Defence in applications to stay prosecutions whenever a vigilante is less scrupulous than Mr U and at any point encourages the Defendant to commit an offence. However, it remains the case that there is no appellate precedent for a successful stay for abuse of process where entrapment is carried out by a private citizen rather than a police officer.

• ^[1] https://www.bailii.org/ew/cases/EWCA/Crim/2018/1821.html
• ^[2] https://news.npcc.police.uk/releases/police-approach-to-paedophile-hunters-has-not-changed
• ^[3] Council for the Regulation of Health Care Professionals v The General Medical Council and Saluja [2006] EWHC 2784 (Admin)
• ^[4] R v Shannon [2001] 1 WLR 51
• ^[5] For first instance examples see the article (page 4) by Tulisa Contostavlos’s counsel following her successful application at first instance to stay proceedings for abuse of process due to the actions of Mazher Mahmood: the “Fake Sheikh“. Additionally, in R v X (X was represented by Jim Sturman QC of 2 Bedford Row), another case involving the “Fake Sheikh”, the Prosecution did not resist an application to stay a case for abuse of process after criticisms of the conduct of the “Fake Sheikh”. The trial Judge described the conduct in that case as being such as to make the Defence submission that the proceedings were an abuse as “unanswerable”.