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.

Of Entrapment and Agent Provocateurs - Part I

Few things capture the public's imagination like a Sting Operation. X goes undercover and acquires the target's confidence, after which the target is induced to commit illegal acts or confess to the occurrence of alleged improprieties. If X is a police officer, then an arrest usually follows. If X is a journalist, then the footage is broadcast through news items labelled The Truth [about so and so]. A fiery debate rages on TV about the veracity of these claims and the propriety of such inducements. The society's moral dilemmas in accepting such sting operations is reflected in the criminal law as well, where for several years jurisdictions have debated how Eve and the Snake should be treated for biting the forbidden fruit [a reference used by the House of Lords in R v. Sang, [1980] AC 402]. The Indian experience is discussed here

The Snake

Our temptress, the Biblical Snake, is evocatively labelled an Agent Provocateur in the criminal law [so evocative, that perhaps for the first time the law shares names with lingerie]. I won't press the Biblical reference for long though, as the Madras High Court painstakingly illustrated in Re Ambujam Ammal [AIR 1954 Mad 326] that these agents of deception were well-embraced by historical texts in India. For removal of doubts, I make it clear that my idea of an Agent Provocateur is as defined by the Royal Commission on Police Powers & Procedure (1929): "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."

Important questions emerge. Should these persons be tried for abetting an offence, or lauded for their covert investigation? Should the evidence be regarded circumspect, or enough to secure convictions? Does the identity of the person - private or state agent - matter?

In that order, we proceed.

Finding Crime or Abetting its Creation?

The judicial treatment of this issue depicts a curious state of affairs. In 1917, Aiyar J. of the Madras High Court in Re Lakshminarayana Aiyar [42 Ind Cas 989] unequivocally held that an Agent Provocateur could be guilty of abetment, while laudable motives may prompt the State to withdraw the case. Nearly a century later the Delhi High Court faced a similar issue in Aniruddha Bahal v. State [2010 172 DLT 269], where those who offered bribes to ministers to catch them in the act were chargesheeted. The Single Judge regarded exposing corruption as part of Fundamental duties under the Constitution. More importantly, he held that "in order to expose corruption at higher level and to show to what extent the State managers are corrupt, acting as agent provocateurs does not amount to committing a crime". 

But in 2014, the Supreme Court appeared to have reversed this dictum in Rajat Prasad v. CBI [(2014) 6 SCC 495]. The case was nearly identical to Aniruddha Bahal: a minister was caught on tape accepting bribes by journalists who were then accused as abettors [nearly, for in Aniruddha Bahal the journalists were accused as principals with no complaint against the ministers]. The Court held that whether journalists could be liable was a question for trial, and no blanket rule could be imposed in such cases. However, the Court said that "a journalist, or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment". It remains to be seen in what circumstances would this test of 'no remote connection' will be satisfied.

Questionable Accomplice or Star Witness? 

Less confusion prevails here. The testimony of an Agent Provocateur is admissible and can be relied upon, but Courts have differed in their treatment of such evidence. Nor would such persons be considered accomplices and thus their testimony is not affected by the presumption against such evidence under Section 114 of the Evidence Act 1872. But the Supreme Court in Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762] held that such witnesses were nevertheless interested and thus their testimony requires corroboration. Like any other question of evidence, treatment of such evidence also remains highly contingent on the facts and circumstances of the case.

Public or Private Agents

The Supreme Court in Rajat Prasad observed that operations akin to sting operations by state agents were "yet to be experimented and tested in India legal acceptance thereof by our legal system is yet to be answered". This, I'm afraid, is blatantly incorrect. The Police have engaged in these measures for the longest time, and Courts have been unequivocal in expressing their disapproval of such practices. In 1954, the Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322] condemned the police for supplying bribe money and a magistrate for participating as a witness for a trap. Subsequently, in 1956 the same Court decided Ramnajam Singh v. State of Bihar [AIR 1956 SC 643] and its observations warrant reproduction in full: 

"However regrettable the necessity of employing agents provocateurs may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.

The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve : not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside."

This issue of the Agent Provocateur being a State agent also bears importance for the next post, where we discuss the position of Eve, the tempted.