Sunday, January 11, 2015

Of Entrapment and Agent Provocateurs - Part II

In the previous post, we discussed India's treatment of an Agent Provocateur: "one who entices another to commit an express breach of law which he would not have otherwise committed and then proceeds or informs against him in respect of such offence". Here, I consider the position of the person tempted, enticed and induced into committing the offence. Few would refuse to admit that a person who ordinarily harboured an intention to commit an offence, is placed differently from one who is egged on to commit the offence. The devil, as they say, lies in the detail. It is here that the fact of public versus private agents can matter: for some, the situation be more opprobrium-worthy if the Police were behind such manufacturing of crime, as opposed to some journalist. As we will see, it is a detail which matters.

The Tempted
Two broad questions are raised in respect of our Eve, (i) how does the law treat the fact of Entrapment when considering guilt or innocence, and (ii) how should the law treat this fact. [Caveat: unlike most posts, this does not solely consider the Indian position, for there is a near-absolute dearth of discussion on the point. English and American experiences are drawn from, and those interested in reading further may also consider Canada's treatment of the point.]

Entrapment: How it is Today 
In India, Chapter IV of the IPC contains 'General Defences'. Entrapment is not one of them, nor is it recognised as a defence in any special statutes on criminal law. The situation is England is similar, where no Entrapment defence is recognised statutorily, or at the common law. Both countries do, however, have procedural laws that prevent any abuse of process [Section 482, Cr.P.C. 1973; Section 78, Police and Criminal Evidence (PACE) Act 1984]. While we haven't yet courts label such police action as an abuse of process in India, we did see in the previous post that such police practices are deprecated. In England a stay of proceedings has been granted on grounds of Entrapment by the police in R v. Loosely [2001 UKHL 53].

The USA though, does recognise a defence of entrapment where Law Enforcement agents act as Agent Provocateurs, but not private entrapment. The Supreme Court of the United States [SCOTUS] in Casey v. United States [276 U.S. 413 (1928)] declined to discuss the point, but it placed itself squarely for consideration in Sorrells v. United States [287 U.S. 435 (1932)]. The Court unanimously affirmed the defence, but schisms appeared concerning its understanding. The Court [in an opinion by Hughes J.] believed the Defendant's 'predisposition' to commit the offence was relevant to determine if any entrapment occurred. Merely affording an opportunity for committing the offence is insufficient; the seeds must be planted by the Police. In a separate opinion, Roberts J. believed the focus ought not to be on this predisposition, but rather on the role played by the Police allowing for a more objective analysis. Jacobson v. United States [503 U.S. 542 (1992)] was the first time since Sorrells that the Court did not raise the debate [previously raised in Sherman v. United States, 356 U.S. 369 (1958); United States v. Russell, 411 U.S. 423 (1973)], suggesting the point has become moot.  

Entrapment: How should it be?
This question has varied treatment across jurisdictions: while the USA has debates over the nature and scope of the existing defence, the UK can yet consider a wider set of ideas given the current absence of any defence. 

Not everyone has been satisfied with the rather subjective nature of enquiries in the USA: the line of thought fronted by Roberts J. has found some academic support. The bigger debate today though is on 'Private Entrapment': operations by journalists and other private persons to expose truths [see, Gideon Yaffe "'The Government Beguiled Me': The Entrapment Defense and the Problem of Private Entrapment", 1(1) Journal of Ethics & Social Philosophy (2005); Richard McAdams "The Political Economy of Entrapment" 96(1) Journal of Criminal Law & Criminology 107 (2005)]. State participation in the operation has been central in SCOTUS applying the defence, although one may argue that the subjective test in fact allows an extension to private operations as well by focusing on the tempted and not the tempter. 

Since Loosely (2001), the UK can be seen as recognising some protection in cases of entrapment. Writing prior to this remains important to consider what other approaches may be followed through Section 78 of PACE which allows a variety of remedies through the 'abuse of process clause' [see, Andrew Choo "A Defence of Entrapment", 53(4) Modern Law Review 453 (1990)]. The focus in Section 78 is on the conduct of the police or prosecuting authority, which makes its extension to Private Entrapment difficult. Thus, while the private nature of entrapment did not prevent a stay in R v. Hardwicke [(2001) Crim L.R. 220], it became the reason to refuse reliefs under Section 78 in R v. Shannon [(2001) 1 WLR 51].

India and Entrapment
Since India has a clean slate to work on, the law potentially can develop in several directions. We already have one protection to persons who have been entrapped: evidence of the Agent Provocateur must be corroborated for it to be relied upon. What about an Entrapment defence? Traditional defences are premised upon either excusing certain acts from liability [say, insanity], or justifying acts to not impose any liability on the actor [say, self-defence]. Entrapment, as academics note, cannot be placed in either bracket without problems. What's more, I think that a defence in the conventional form would fail to adequately address the problem society faces when dealing with entrapment. In case of the Police entrapping individuals, it is an abuse of process. The law is supposed to preventing crime, not manufacturing it [see, Rumpole and the Alternative Society (1978)]. 

Private Entrapment is again an abuse of process but for different reasons. It questions the basic notions of privacy we are accustomed to in a liberal society, and constitutional encouragement by Indian courts is a cause for concern no matter what the case may be. Persisting with such encouragement of lies and deception only fosters easy reliance on these means, as opposed to conducting a thorough inquiry. Thankfully, the Supreme Court in Rajat Prasad [see previous post] recognised this and asks for a completely remote person to conduct the operation. The fear of attendant liability should deter those with an ax to grind, but only time will tell how effective it is.

I would like to acknowledge Ms. Deekshitha Ganesan [IV Year, B.A.LL.B. (Hons.)] for her help with these posts.

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