-(2005) 15(2) ICLJ 2a Article: Fashioning an Irish entrapment doctrine based on international experience : Keith Spencer*, rla Veale-Martin**

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(2005) 15(2) ICLJ 2a Article: Fashioning an Irish entrapment doctrine based on international experience Keith Spencer* rla Veale-Martin**

Introduction
The aim of this article is to expose the underdeveloped state of Irish law in the context of entrapment and to demonstrate how the States commitments under the European Convention of Human Rights [1] [And the European Convention on Human Rights Act 2003 .] mandate that this lacuna be reviewed, and that greater clarity be introduced to this area of criminal law. Entrapment is a legal term of art, which is used to describe circumstances where a person has been induced to commit an offence, usually by a law enforcement agent or some other agent of the State, which he or she would not have committed but for the inducement. Such inducements may impact profoundly on the privacy rights of the accused, and evidence obtained as a result of this process can, if proffered at trial, compromise the integrity of the judicial system by impairing ones right to a trial attended by fair procedures and conducted in due course of law. Traditionally, no defence of entrapment existed in the English common law, [2] [ Browning v J.W.H. Watson (Rochester) Ltd. [1953] 2 All E.R. 775. ] and the identity of the procurer of a crime was considered irrelevant when a court was considering the guilt of the principal offender. More recently however, there has been a discernable shift from this former, hostile approach to entrapment. This tremor, which threatens to breach the bedrock of the old common law, is largely due to a greater judicial cognisance of human rights norms, but it has not rivaled the seismic shift that heralded the advent of the entrapment defence in the United States. This article takes account of recent decisions of the House of Lords and the European Court of Human Rights and considers whether the Irish courts need to adopt a more progressive attitude to pleas of entrapment in order to fulfill both their constitutional and international obligations. Both sides of the entrapment argument were neatly articulated by Lord Bingham C.J. in Nottingham City Council v Amin , [3] [ [2000] 1 Cr.App.R (S) 426. and while every case will present varying degrees and manifestations of entrapment, the broad issue to be considered can be stated thus:] On the one hand it has been recognized as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurized or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognized that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else. [4] [ibid . at p.431.] The potential effects of entrapment Although accused persons have traditionally been deprived of entrapment as a substantive defence, [5] [ R v Sang [1980] A.C. 402. ] the courts have allowed circumstances which amount to entrapment to act in less decisive ways in the course of a trial. Judicial instinct would not allow some of the more baleful entrapment scenarios to go unchecked, and for this reason courts began to exclude evidence obtained as a result of entrapment [6] [ R v Ameer and Lucas [1977] Criminal. L.R. 174 ; Smurthwaite and Gill (1994) 98 Cr.App.R 437: In England, such evidence may be excluded pursuant to s.78 of the Police and Criminal Evidence Act 1984. ] or to stay proceedings on the grounds that to continue it would be an

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abuse of process. [7] [ R v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 A.C. 42 , the House of Lords held that the court has jurisdiction to stay proceedings and order the release of the accused when the court becomes aware there has been a serious abuse of power by the executive. The court can refuse to allow the police or prosecuting authorities to take advantage of such an abuse of power by regarding it as an abuse of the courts process. This was applied in R v Latif [1996] 1 W.L.R. 104 ; Chalkley and Jeffries (1998) 2 Cr.App.R 79.] Mitigation of sentence [8] [Lord Scarman, at [1980] A.C. 402, 451, stated that the true relevance of official entrapment into the commission of crime is upon the question of sentence, when its mitigating value may be high; however, this view has been departed from in subsequent authority.] is another possible consequence of entrapment, [9] [See Ashworth, Defending the Entrapped [1999] 9 Archbold News 89.] although human rights proponents argue that mitigation of sentence does not sufficiently deter the police from pursuing objectionable practices. The prevailing view of entrapment considers the rationale underlying the plea to be one of guaranteeing a fair trial to the accused rather than deterring law enforcement agents from resorting to sharp practices, even though this may be a welcome knock-on effect of strict rules on entrapment. While it is accepted that undercover liaisons with the criminal community can be a fruitful and indeed invaluable law enforcement technique, the courts must be vigilant to ensure that these practices do not escalate to the extent that they are, in effect, causing or inciting crimes where such would not otherwise have been committed.

The contours of entrapment in the UK A discernible change in judicial tack, in the context of entrapment, took place in Attorney Generals Reference (No.3 of 2000) [10] [[2001] U.K.H.L. 53 [2001]; 1 W.L.R. 2060 (HL).] and the R v Looseley case. Both of these cases came by way of conjoined appeal before the House of Lords. In both cases the law enforcement agents had ensnared the accused by posing as drug users and requesting that the accused procure drugs for them. One crucial point of distinction emerged between the cases. In Loosely , the drugs had been obtained, for the officer, after a phone call had been made to the accused. This way of proceeding was not seen as inherently objectionable. In A.Gs Reference (No. 3 of 2000) , however, when the accused had been approached by the undercover agent to purchase heroin he had, at first, refused and proclaimed that he was not into heroin, and it was only in response to subsequent requests that he procured the drug. The court met the issue of entrapment head on. Lord Hoffman stated in emphatic terms that it is not acceptable for State agents or officers to lure citizens into committing acts forbidden by the law in order to prosecute them for so doing. This would amount to an abuse of process of the courts and a misuse of State power. It is the function of the courts to stand between the State and its citizens and to prevent exactly this. [11] [[2001] U.K.H.L. 53, para.40.] The rationale for accepting entrapment arguments abounding in the decisions of the Law Lords is the integrity principle. Confused rationales of deterrence and public confidence, as well as entrapment reduces culpability, were spurned by the House in favour of the idea that for a court to allow evidence garnered in such an iniquitous fashion would be to bring the administration of justice itself into disrepute. The court could not be seen to condone breaches of human rights and the rule of law. With the underlying rationale unequivocally stated, the court went on to consider the potential effect of entrapment in English law. Lord Nicholls coined the phrase state-created crime, and it is this that the judiciary must be prompt to identify and weed out. The Law Lords ventured a more convincing legal analysis of the issues involved in cases of entrapment than that which had been put forward in previous cases, and thankfully, the court departed from the practice of simply listing factors to be considered, [12] [See Smurthwaite, Nottingham City Council v Amin [2000] 1 W.L.R. 1071 .] without any discussion of the weight each factor should be accorded, and reminding lawyers of the frustrating mantra that each case depends on its own facts. There is undoubtedly a wide spectrum of factual matrices which fall under the broad definition of entrapment, ranging from cases where undercover policemen repeatedly badger vulnerable drug addicts for a supply of drugs in return for excessive and ever increasing amounts of money, to cases in which known drug dealers voluntarily supply hard drugs

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immediately upon request. The difficulty, however, is drawing a line in the sand which represents a point beyond which the police officer may not stray without jeopardising the case and leading to an abuse of process of the courts. Lord Nicholls, in an effort to identify the limits to proactive policing, stated: a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word unexceptional. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police did no more than others could be expected to do. The police did not create crime artificially. [13] [[2001] U.K.H.L. 53 at para.23.] This passage was approved of by the other Law Lords in the case and, in effect, gives birth to the unexceptional opportunity test which now governs cases of entrapment in the UK. It is clear that some degree of deception, importunity and even threats [14] [See McHugh J. in Ridgeway v The Queen (1995) 184 C.L.R. 19, 92. ] may fall short of this boundary but that more reprehensible practices involving intense persuasion and persistence, or wheedling and incitement, on the part of law enforcement agents will lead to proceedings being stayed. One type of police activity that does not seem to sit comfortably with this test are those known within the industry as manna from heaven operations. These operations involve the police creating the opportunity for a crime to be committed at, for example, a location where crimes of a similar nature have been committed in the past, in the hope that criminals will succumb to temptation and repeat the crime. [15] [For example, after a recent spate of robberies at a local supermarket the police leave valuable items on display in an unlocked car.] There is a subtle distinction between this type of operation and that of random virtue testing, [16] [per Lord Nicholls at para.26.] where the law enforcers have no particular criminal in mind but rather present random citizens with the opportunity to commit a crime even though they may never have committed a crime in the past. Virtue testing preys upon the weakness of human nature and in effect creates crime for an improper purpose. The legitimacy of this type of operation had been upheld in other jurisdictions [17] [per Lamer C.J. (Supreme Court of Canada) in Barnes (1991) 3 C.R. (4 [th] ) 1, pp.2223.] but, nevertheless, the House of Lords viewed it with contempt. The crucial difference between these two techniques was the absence of reasonable suspicion in the latter. Reasonable suspicion on the part of the police that X would commit the crime emerged as a second pillar of the entrapment test. The requirement to show the existence of this factor will guarantee against police randomly targeting individuals without grounds for believing that they are in the habit of committing crimes. The court did say that the greater the degree of intrusiveness on behalf of the law enforcers the more closely the court will examine the reasons for it. [18] [per Lord Nicholls at para.24.] Is the court suggesting that if there were a serious and growing problem of drug addiction in a particular area, then a corresponding deterioration in police conduct and respect for human rights would be justified? It is submitted that this reading is not the one intended by the court, and the true reading of the passage is one informed by the comments of Lord Nicholls that in these situations proportionality has a role to play. Thus, any deterioration in police practices would presumably still have to come within the upper threshold set by the test above, and the ultimate consideration is whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Other factors which the court considered to be relevant when assessing whether police conduct overstepped the mark included the nature of the offence, [19] [The use of pro-active techniques is more needed and, hence, more appropriate, in some circumstances than others. The secrecy and difficulty of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations. Per Lord Nicholls at para.26.] the reason for the particular police operation [20] [ the police must act in good faith and not, for example, as part of a malicious vendetta against an individual or group of individuals. Having reasonable grounds for suspicion is one

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way good faith may be established, but having grounds for suspicion of a particular individual is not always essential. Per Lord Nicholls at para.27.] and the nature and extent of police participation in the crime. [21] [The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendants circumstances, including his vulnerability. Per Lord Nicholls at para.28.] It is worthy of note that the House of Lords expressly dismissed any approach that would take account of an accuseds criminal record or past criminality. A criminals record was only relevant in so far as it could be properly linked to considerations such as reasonable suspicion. The U.S. case law based on predisposition was rejected on the basis that predisposition on the part of the accused to commit an offence does not remedy the misuse of State power, and it is this misuse that acts as an affront to the public conscience.

Entrapment and the European Convention on Human Rights The jurisprudence from the European Court of Human Rights has not left us with any particular or immediate obligation to recognise a defence of entrapment. The case law of the Strasbourg Court demonstrates a firm belief that the unsanctioned acts of the police, even if inspired by noble intentions, may result in gross infringements of human rights. In the leading case of Texeira de Castro v Portugal , [22] [ (1999) 28 E.H.R.R. 101. ] the complainant brought an action under Art.6(1) of the European Convention on Human Rights, [23] [Art.6(1)- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.] on the basis that he had not received a fair trial due to the conduct of plain clothes police officers who had incited him to commit the offence of which he was subsequently convicted. The case concerned a conviction for trafficking in heroin, based mainly on the statement of the two police officers involved in the undercover investigation of de Castro, who had been persistent in their efforts to purchase the drug from the accused. In its ruling, the European Court of Human Rights reiterated that the admissibility of evidence was a matter primarily for regulation by national law and that the courts task under the Convention was to give a ruling as to whether the proceedings as a whole were fair, and that included the way in which evidence was taken. In arriving at its conclusion the court stressed a number of factors which it deemed significant in ascertaining whether the police officers activities went beyond that of undercover agents. These included, whether the intervention took place as part of an anti-drug trafficking operation ordered and supervised by a judge, [24] [Arguably, of particular importance as this fact was used to distinguish this case from the case of Lqdi v Swizerland [1992] I.I.H.R.L. 25 (June 15, 1992) .] whether the law enforcement agents had sufficient cause to suspect the accused of prior involvement in the commission of similar offences, [25] [Of relevance here would be the accuseds criminal record, and in the instant case the accused had none.] whether a preliminary investigation concerning the accused had been opened, whether the accused went beyond what he had been incited to do by the officers and whether any evidence existed to show that he was predisposed to committing the offences. In its application of these factors to the case before it the court found that the police officers had not confined themselves to investigating de Castro in an essentially passive manner but instead had incited the commission of the offence. Whether the investigation was carried out in such a manner seems to constitute the gravamen of entrapment under the courts approach. It is submitted that this terminology, although not of itself prescriptive of entrapment, may be worthy of importation into Irish

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law. The courts must ask whether the law enforcement agent in question countenanced active steps in contributing to the commission of the offence. In interpreting this phraseology, the House of Lords in Loosely construed it in such a way that it did not preclude the police from taking any active steps whatsoever in authorised undercover operations. Irish courts should use the question of whether or not investigations were carried out in an essentially passive manner as a trigger, which serves to put them on inquiry as to whether or not entrapment is present in any given case. If the investigation is found not to have been conducted in such a manner, then the court should see the circumstances as warranting further enquiry into any incitement or persuasion on the part of the police. The action of the police officers went beyond those of undercover agents because they instigated the offence, and there was nothing to suggest that without their intervention it would have been committed. It was because of this that the court found that the applicant had been deprived of a fair trial and that there had thus been a violation of Art.6(1) of the Convention. When discussing the issue of the admissibility of evidence obtained through entrapment, the court [26] [At para.48 of the judgment.] adverted to the fact that the applicants detention resulted directly from the use of evidence that was incompatible with Art.6(1). Although this observation seems to be mildly inconsistent with the courts earlier holding that the question of admissibility of evidence is a matter that will be governed by national law, it is clear that where the gathering of such evidence is in obvious violation of Art.6, the court will not decline the opportunity to pronounce upon the corrupting effect of such evidence. In the recent case of Edwards v United Kingdom , [27] [ [2003] Criminal L.R. 891. ] involving a claim of non-disclosure at trial, the court saw fit to make general comment on the issue of entrapment. The European Court of Human Rights recognised the importance of the public interest in the fight against crime but held that the requirements of a fair trial are paramount and that, if there had been police incitement amounting to entrapment, this would render it unfair to try a defendant. The court reiterated that its role, where cases alleging entrapment come before it, is to examine whether the national procedure in place for determining the issue of entrapment is fair. [28] [ibid . at 54.]

Cultivating an awareness of entrapment at home

Most jurisdictions have generated jurisprudence on, and some manner of remedy for, entrapment. [29] [ Northern IrelandR v Bellingham [2003] N.I.C.C. 2 (March 10, 2003) applying Loosely; CanadaR v Mack 1988 2 S.C.R. 903 .] Irish law, however, appears to be remarkably underdeveloped in this area. Although the common law concept of agent provocateur is alive in our law, that doctrine suffers from a paucity of jurisprudence and a lack of any coherent definition. [30] [See Dental Board v OCallaghan [1969] I.R. 181. ] In The People (DPP) v Van Onzen and Loopmans , [31] [ [1996] 2 I.L.R.M. 387. ] the Court of Criminal Appeal was given the opportunity to pronounce on the area of entrapment. Here the defendants had imported a large quantity of illegal drugs into Ireland. The garda inspector in charge of the operation had come into possession of a mobile phone which was being used by the drug traffickers, but did not reveal himself and allowed the defendants to believe that he was their contact in order to gather evidence. The Court of Criminal Appeal indicated that the garda had behaved absolutely properly, and so their actions did not constitute entrapment. By inference, one can speculate as to how the court would have been minded had the behaviour of the garda been attended by greater improbity. If the facts are distorted slightly and one imagines greater garda involvement, to the extent where garda were responsible for the whole import operation, where garda had persuaded the participants to enter the country in order to make a drop off that they wished to carry out in international waters, then perhaps this case would have been a more appropriate one in order for the court to define the parameters of an entrapment defence, or grant a procedural remedy to counterbalance the use of entrapment techniques.

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One area in which successful prosecutions often occur based on practices which may amount to entrapment is that of test purchases. This technique involves sending either a police officer [32] [See DPP v Marshall and Downes [1988] 3 All E.R. 683. ] or, where the offence is one of selling a restricted item to an underage person, a member of the public, into a retailer in order to see whether such a retailer is inclined to break the law in response to a request to purchase goods. This is the regular practice in the Office of Tobacco Control in Ireland, and it is estimated that at least 20 successful prosecutions take place annually in respect of such an offences, yet there seems to be a dearth of legal authority underpinning such practices. In one Irish case heard before the District Court, [33] [See The Irish Times report, October 1, 2004.] the judge speculated that: The use of a 14 year-old girl by the health board to purchase cigarettes in the test case could be regarded as entrapment. He qualified this by stating that he was not expressly saying that it was being regarded as entrapment in the case before him, but nevertheless dismissed the charges. The judge had little regard for the protocol governing the use of minors in such a case, which had apparently been agreed between the health boards and the Office of Tobacco Control. It is submitted that this method of procuring a conviction needs to be strictly governed by legislation or regulation setting out the legal parameters of a childs involvement, and the lengths to which the health boards or Office of Tobacco Control can go in encouraging, and providing the ingredients for, the commission of the offence. It is further submitted that the absence of a legislative basis for such dubious activities might have the effect of tainting any evidence obtained through these means, and that perhaps it would better to initiate reform modeled on both the English Criminal Justice and Police Act 2001 and the Undercover Operations Code of Practice. [34] [Issued jointly by all UK police authorities and HM Customs and Excise in response to the Human Rights Act 1998 .] The above Act expressly legislates for the legality of test purchases and provides that a person under 18 can be requested to attempt to purchase alcohol by a constable; the Code of Practice also contains specific guidelines for test purchases. This provides unequivocal authority for test purchases, something much needed in the Irish context, especially when one considers that the majority of prosecutions result from on-the-spot checks [35] [ibid .] where there is no reasonable suspicion on the part of the health board or Office of Tobacco Control that the establishment will commit the offence or no history of trespass in this regard on the part of the establishment. The necessity for reasonable suspicion was emphasized by the House of Lords in Loosely , [36] [ibid . at n.12.] when the court [37] [Quoting from the Undercover Operations Code of practice note 3A.] endorsed the view that:
test purchase should not be used as a speculative means of search for the existence of a commodity or service where no other reasonable grounds exist to suspect that criminal offences have been or are being committed.

The problems with these practices in Ireland are further magnified by the questionable status of the agency instigating such test purchases. While the English Act allows for a constable to engage a minor with a view to test purchasing, the Irish operations are run by health boards whose law enforcement authority is hardly commensurate with that of a constable. [38] [The Undercover Operations Code of Practice defines test purchasers as appropriately trained law enforcement officers who seek by means of authorized activity, to establish the nature and/or availability of a commodity or service, the possession or use of which involves an offence.] The collusive practices of the OTC and the health boards amount to little more than random virtue testing with heavy involvement by semi-State bodies, and are in need of review. Judicial supervision of the agent of enforcements activities was another factor which both the House of Lords [39] [Loosely, per Lord Hoffman at para.60- To allow policemen or controlled informers to undertake entrapment activities unsupervised carries great danger, not merely that they will try to improve their performances in court, but of oppression, exhortation and corruption.] and the European Court of Human Rights [40] [ Teixeira de Castro v

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Portugal (1998) 28 E.H.R.R. 101 .] placed emphasis on. In Teixeira in particular, the court gave weight to the fact that the police were not acting in the course of an officially authorised investigation. The test purchases that are habitually being carried out in Ireland in the context of cigarette and alcohol sales suffer inveterately from a similar lack of authorisation. On the other hand, despite the forgoing arguments, an Irish court seised of the matter may prefer the view of the English Divisional Court in Ealing LBC v Woolworths . [41] [ [1995] Criminal L.R. 58. ] In commenting upon the practice of using children to test purchase videos [42] [See also Harrow LBC v Shah and Shah [2000] Criminal L.R. 692 , involving the purchase of a lotto ticket.] in breach of the age certificate for such videos, the court said: What happened was not entrapment of the respondents; the boy did not act as an agent provocateur nor did he commit an offence in purchasing the video. He did not incite, aid or abet the commission of an offence by Woolworths. By purchasing the video he was simply playing a part in the situation which rendered them culpable. Had there been any element of persuasion of the saleswoman by the customer, different considerations might have prevailed.

Substantive defence of entrapment in Irish law?lessons from abroad

Entrapment in the United States is a doctrine of federal law [43] [ Sorrells v United States 287, U.S. 435 (1932) .] that constitutes a ground for acquittal, but it does not protect a person who was predisposed to commit the offence in question. This concept of predisposition raises a host of difficulties and has generated much case law in that jurisdiction. [44] [ Sorrells v United States 287, US 435 (1932) ; Sherman v United States 356 US 369 (1958) ; United States v Russell 411 US 423 (1973) ; Jacobson v United States 503 US 540 (1992) .] The substantive defence of entrapment in the U.S. is a creature of entirely judicial parentage and has no basis in statute, this has allowed a significant divergence of view to emerge on the issue of how a court should go about identifying predisposition and what the subsequent effect of such is. Predisposition is used by the prosecution in order to rebut entrapment once that defence has been raised by the accused. Difficulties have been spawned by the courts in some cases equating predisposition with intent, and also in deciding the appropriate time at which predisposition is to be present. [45] [The court in Jacobson v United States 503 US 540 (1992) held that predisposition must be measured prior to the time the Government approaches the defendant.] The U.S. courts have been implored by lawyers to abandon the concept of predisposition, with its inherent leaning towards a subjective evaluation of events, [46] [Different tests are being used in different Circuits in the US in order to ascertain whether the defendant was predisposed. For example, in the Seventh Circuit a predisposed person is someone who, if left to his own devices, is likely to have committed the charged crime United States v Hollingsworth 27 F.3d at 1200 , whereas the First Circuit has held that a predisposed defendant is someone who would be willing to commit a crime if given an ordinary opportunity United States v Gendron 18 F.3d 955 (1 [st] Cir 1994) .] and instead to adopt an approach which centres on the conduct of the Government agent. [47] [See United States v Russell 411 US 423(1973) .] Further confusion has been created by a decision of Posner J. in United States v Hollingsworth , [48] [ 27 F.3d at 1200. ] when he interpreted an earlier, seminal decision on entrapment [49] [ Jacobson v United States 503 US 540 (1992) .] as amounting to a departure from the almost universally held view that predisposition was a mens rea issue that measured the defendants theoretical willingness to commit a crime. Upon Posner J.s reading of the decision, an enquiry into the accuseds objective circumstances was also required when evaluating predisposition. This ruling, i.e . that both subjective and objective considerations must support the notion that the defendant was willing to commit the crime, has had a blunderbuss effect spreading inconsistent predisposition tests across the States. [50] [See Ponsoldt and Marsh, Entrapment When The Spoken Word is the Crime (2000) 68 Fordham Law Review 1199.] Leaving aside the uncertainty as to the legal definition of predisposition, another problem with the doctrine, in its manifestation in US law, is that it leaves persons with previous convictions in a particularly vulnerable state, and there is a risk that such persons would be preyed upon by law enforcement agents.

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The question of predisposition or the lack thereof on the part of the accused surfaces in Texeira de Castro [51] [(1999) 28 E.H.R.R. 101.] as one of the factors taken into account by the court in concluding that there had been incitement to commit the crime by State agents. However, the European Court did not pronounce on whether it was essential for a substantive defence of entrapment to exist in national law in order for states to comply with their obligations under Art.6(1). It can, however, be inferred from the judgment that a formal entrapment defence is not necessary as long as proceedings, on the whole, are fair. This does, however, imply that, at the very least, evidence tainted by entrapment must be excluded. Predisposition has been rejected in English cases as a relevant concept in entrapment. Lord Nicholls of Birkenhead, in Loosely , was of the opinion that the absence or existence of predisposition in the individual is not the criterion by which the acceptability of police conduct is to be decided. Predisposition does not make acceptable what would otherwise be unacceptable conduct on the part of the police or other law enforcement agencies. This follows the observation of Lamer J. in the Canadian Case of R v Mack [52] [ 1988 2 S.C.R. 903. ] that it is always possible, notwithstanding a persons predisposition, that it was the conduct of the police which led the defendant into committing the crime.

Conclusion
It is submitted that a substantive defence of entrapment, with its sister concept of predisposition, if it were introduced into the Irish legal terrain, would not only suffer from the above shortcomings, but further, it would be a little-used commodity due to the fact that such a defence functionally requires an admission of culpability. Predisposition has been the subject of debate in the U.S. courts for many decades, and yet the courts seem no closer to a workable definition than they were at the beginning. If a substantive defence of entrapment were to be judicially created in this jurisdiction, the Irish courts would need to set out its parameters unambiguously on the first occasion on which they were given the opportunity to do so, in addition to avoiding any mistakes that have been made in the formulation of the defence abroad. The better view is that this is a task that could only be realistically undertaken by the legislature but it is a task that is inordinately perilous, and entrapment is probably better remedied by staying proceedings, or in cases of more minor entrapment, by the exclusion of any evidence obtained as a product of it. As it stands, Irish law on entrapment is sparse or non-existent, and the legal situation certainly does not boast the clarity and certainty which an accused is entitled to as held by the European Court of Human Rights in Malone v United Kingdom . [53] [ (1984) 7 E.H.R.R 14. ] There, the Court emphasised that the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstance in which, and the circumstance on which, public authorities were entitled to resort to intrusive covert measures. Irish law needs to provide clear criteria governing the reception, or more properly the rejection, of entrapment evidence. In balancing the public interest in the fight against crime and the right to a fair trial, the public interest cannot justify the use of evidence obtained as result of police incitement. The courts should intervene when the Governments quest for convictions led to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law. [54] [ Jacobson v United States 503 US 540 (1992) at 553 .] Legislative provisions are desperately needed in Ireland, as well as the codification of rules of practice or unwritten protocols that might exist in the context of covert operations. This is needed in order to ensure that such practices are in accordance with the strong protections contained in Art.38.1 of the Constitution. England has seen fit to introduce legislation such as the Regulation of Investigatory Powers Act 2000 [55] [(RIPA).] in order to comply with its obligations under the Human Rights Act 1998 . The necessity for clear law on entrapment is made more immediate by the enactment of the Criminal Justice (Joint Investigation Teams) Act 2004 [56] [The purpose of the Act is to enable effect to be given in Irish law to the EU Council Framework Decision of June 13, 2002 on Joint Investigation Teams.] into Irish law. It is an Act which is part of a series of EU anti-terrorism roadmap measures,

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which makes provision for inter-jurisdictional police co-operation in investigations of serious crime which has cross boarder dimensions. The forging of closer links with foreign law enforcement agencies and the establishment of teams comprising of officers from many member states in order to investigate high profile crime within the E.U. has massive potential for abuse and calls out for the harmonisation of laws governing the conduct of undercover agents and also laws defining and remedying entrapment. It is submitted that, in Ireland, the judiciary can play its part, first by the recognition of the concept of entrapment and a pronouncement that such practices are repugnant to fair procedures, and secondly by the granting of stays in cases where entrapment is present on the facts. Irish law needs to provide for the legality of test purchases because these operations often constitute entrapment and are redolent of unfair procedures. Once again, English law has provided a clear basis for these techniques, [57] [English Criminal Justice and Police Act 2001 and the Undercover Operations Code of Practice.] and it should not be necessary to rely on the Constitution to fill gaps left by inertia on the part of the Legislature. Irish law has a fresh slate in terms of entrapment, which means that we can benefit from an la carte selection of different principles germinated in other jurisdictions. Loosely can be seen as a well reasoned and highly persuasive decision, and features such as the necessity for reasonable suspicion, and the unexceptional opportunity test, are worthy of import and could be used in conjunction with the active/passive distinction, in the context of police activity, adverted to by the European Court of Human Rights. An Irish doctrine of entrapment tailored in this way would be a step towards safeguarding the rights of the accused against questionable undercover police practices.

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[B.C.L. (U.C.D), LL.M (Dub), Lecturer, Griffith College, Senior tutor, U.C.D.] [LL.B (Dub), LL.M (European Law) (U.C.D.).]

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