Abuse of Process and Judicial Stays of Criminal Proceedings

By Andrew L.-T. Choo | Go to book overview
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When Eve, taxed with having eaten the forbidden fruit, replied 'the serpent beguiled me,' her excuse was, at most, a plea in mitigation and not a complete defence.1

This judicial explanation of the events of the Garden of Eden2 highlights the English courts' attitude to the problem of entrapment.3 In R. v. Sang the issue before the House of Lords was what a trial judge should do 'when he is satisfied that an accused has been deliberately procured, incited or tricked [by an official of the Government] into the commission of a crime which he would not otherwise have committed'.4 This practice of facilitation or incitement, by an official of the Government, of the commission of a crime which the defendant would not otherwise have committed will be referred to as 'entrapment'. The House of Lords in Sang held that entrapment could not be taken into account except in the exercise of the judge's discretion in sentencing. In this chapter I seek to expose the flaws in the reasoning of the House of Lords and to examine a number of alternative approaches.

First, it is necessary to consider briefly the context in which the issue of entrapment may arise.

Generally the police rely on members of the public, typically victims, to report the commission of crimes. In some situations, however, sole reliance on such reporting would prove ineffective. One of these, obviously, is the situation where a potential complainant is unaware that a criminal offence has been committed. Violations of the multiplicity of modern safety laws, for example, could easily go unnoticed by the people they are designed to protect.5 In order to detect possible breaches, it may be necessary in such cases for the appropriate authorities to offer the opportunity for their

R. V. Sang [ 1980] AC 402, 446 per Lord Fraser.
Gen. 3.
See A. Choo, "A Defence of Entrapment" ( 1990) 53 Modern Law Review453, on which this chapter is based.
[ 1980] AC 402, 425.
See also R. V. Mack ( 1988) 67 CR (3d) 1, 13: 'some criminal conduct may go unobserved for a long time if the victims are not immediately aware of the fact that they have been the subject of criminal activity, in the case, for example, of commercial fraud and also bribery of public officials.'


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