Here's your answer at last, Bryan. Sorry about the delay.
Actually, I think the new improved Google Answers allows you to
respond to a clarification request while the question is locked, but
maybe it was temperamental today.
In 1929, the first-ever public consideration of police powers was
undertaken by a Royal Commission on Police Powers and Procedure. They
defined "agent provocateur" as "a person who entices another to
commit an express breach of the law which he would not otherwise have
committed and then proceeds or informs against him in respect of such
an offence". They stated that policemen should not act as agents
provocateurs. Of course this doesn't actually define "enticing" as
thoroughly as a lawyer might wish. Lord Hoffman has pointed out:
"For example, it has been said that a policeman or paid informer
should not act as an agent provocateur; an expression used to signify
practices employed by foreigners unacquainted with English notions of
decency and fair play: see para 104 of the Report of the Royal
Commission on Police Powers and Procedure (1929) Cmd 3297. But what
exactly is an agent provocateur? The Royal Commission said that he was
"a person who entices another to commit an express breach of the law
which he would not otherwise have committed, and then proceeds or
informs against him in respect of such offence." This is helpful so
far as it goes, but one still has to say what amounts to enticing and
what it means to say that the breach of the law would not otherwise
have been committed. In other words, the definition assumes but does
not define the standards of decency and fair play with which the
activity of the agent provocateur is contrasted."
http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011025/loose-2.htm
Despite these criticisms, the agent provocateur definition seems a
useful statement for our purposes, making it clear that what we
generally call entrapment was thought to be unethical by a Royal
Commission, chaired by the eminent Viscount Lee of Fareham, well
before 1940. A similar view was expressed by some judges in the decade
after World War Two. A case from 1948, in which the judge admonished
the police and adjusted his sentencing accordingly, is seen as
important in the legal history of entrapment.
"The House [of Lords in 1980] said that the only constitutionally
proper way in which the court could mark its disapproval was by
admonishing the police (as Lord Goddard CJ had done in Brannan v Peek
[1948] . . and Browning v JWH Watson (Rochester) Ltd [1953] . .) and
by imposing a light or nominal sentence. It was for the police
authorities to take disciplinary action or prosecute policeman or
informants who took part in the crime."
http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011025/loose-2.htm
"Mid-twentieth century Lord Chief Justices, who could not possibly
have been regarded in their own times as modern liberals, made
trenchant observations against the practice of entrapment, plainly
intended as practice directions to police.
[...]
No?one who read Lord Goddard CJ's words [in 1948] about the dislike
for such [evidence in] this country should think that the attitude of
the courts towards agents provocateurs is different in principle from
what it was then".
http://www.chethams.co.uk/westlondon/WLSSTALKbyPatrickCurrenQCendnotes.htm
================
None of this refers to MI5, of course. As you probably know, they were
not subject to any statutory regulation before 1989, and have been
described as having had no statutory existence. In the wartime climate
a judge's sense of fair play in a case involving the security services
might have been quite different from his feelings about entrapment in
other circumstances. After all, the mood of the times allowed the
Emergency Powers (Defence) Act, 1939, to state that "Any Act of
Parliament may be amended, suspended or applied with or without
modification."
In theory, the police could have prosecuted anyone suspected of
incitement, conspiracy or acting as an accomplice. This was the only
way of regulating entrapment except for internal regulation from
within the police or MI5.
"Throughout both World Wars and the Cold War, the work of the service
set the boundaries on which the Security Service Act based its
provisions in 1989."
http://www.bbc.co.uk/crime/fighters/mi5.shtml
Today, evidence collected through entrapment may be ruled inadmissible
in court, but at that time the situation was simply one of the police
policing themselves and deciding whether to prosecute anyone else.
"Traditionally it was for the police authorities to take disciplinary
action or prosecute police officers or informants who took part in the
crime."
http://www.freebeagles.org/articles/entrapment.html#a
Since the Police and Criminal Evidence Act (1984), judges have the
discretion to exclude evidence obtained "unfairly". Entrapment in
itself is no defence in English law.
=================
Links to a glossary of legal terms:
Incitement
http://www.kevinboone.com/lawglos_incitement.html
Conspiracy
http://www.kevinboone.com/lawglos_conspiracy.html
An accomplice "who aids, abets, counsels, or procures the offence."
http://www.kevinboone.com/lawglos_accomplice.html
=================
Links to other pages I looked at which may have further snippets of interest:
"The judicial response to entrapment in this country before R v Sang
[1980] AC 402 can be summarised as follows. Entrapment attracted
expressions of judicial disapproval, notably by Lord Goddard CJ in
Brannan v Peek [1948] 1 KB 68, 72, and Lord Parker CJ in R v Birtles
[1969] 1 WLR 1047, 1049, but it did not furnish a substantive defence
. . "
http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011025/loose-1.htm
"Despite the fact that the courts have strongly disapproved of the use
of agent provocateurs to entrap defendants, entrapment is no defence
in domestic law."
SUBTERRANEAN BLUES: THE FUTURE OF COVERT POLICING
http://www.criminalbar.co.uk/lectures/lec7.cfm
"The degree of guilt may be modified by the inducement, and that can
appropriately be reflected in the sentence: See [...] Browning v JWH
Watson (Rochester) Ltd [1953] where Lord Goddard CJ pointed out that
the court could even grant an absolute discharge in such
circumstances."
http://www.austlii.edu.au/au/other/crime/Taouk.html
"Before 1989, there was no statutory regulation of the Security
Service, nor even any statutory recognition of its existence."
http://www.dca.gov.uk/foi/bakerfin.pdf
I do hope this is useful. Please take me up on the usual offer of
clarification if there is anything I could add which would be helpful.
I'd be glad to do my best for you.
Best wishes - Leli
search terms:
Entrapment, "agent provocateur",
MI5, security service, police,
English law
wartime, world war, WWII, 1940s
"before 1984" "before 1989"
Police and Criminal Evidence Act (1984)
Security Services Act 1989
Emergency Powers (Defence) Act, 1939 |
