Covert and proactive investigations

2015-08-26

Covert and Proactive Police Investigations

Learning outcomes: at the end of this tutorial you should be able to:
1.

identify and explain the effect of PACE section 78 on the admissibility of illegally or unfairly
obtained evidence;

2.

identify and explain the principal criteria by which judges determine the admissibility of
evidence obtained through covert or proactive policing methods;

3.

explain the scope and application of the doctrine of abuse of process to the use of covert and
proactive policing.

Essential Reading
First read the relevant section of your chosen text-book:

Durston pp. 68-86

Doak and McGourlay, chapter 9

Choo, chapter 7

Then read Dennis, paras. 8.015-8.034 or Roberts and Zuckerman, pp. 191-219
Teixeira de Castro v Portugal (1999) 28 EHRR 101
Looseley, A-Gs Reference (No 3 of 2000) [2001] 4 All ER 897.
Further reading
Note that Further Reading contains two main categories of material. First, there are recent academic
articles from periodicals which discuss particular legal issues in greater depth. Secondly, there is
background material which puts the law of Evidence into the broader context of criminal process.
Sometimes that will be extracts from key criminal process textbooks such as Sanders and Young or
Ashworth and Redmayne. On other occasions it might be recent sociological or criminological
literature. We do not expect you to read these materials for the tutorial (or even necessarily at all). But
critical students engaged in the subject may well find some or all of them of interest. Dip in when you
have time and read what holds your interest.
M O'Floinn and D Ormerod [2012] Social networking material as criminal evidence Criminal Law
Review 486
Ashworth and Redmayne, pp. 125-128
Sanders and Young, pp. 321-343
B Loftus and B Gould (2012) Covert surveillance and the invisibilities of policing 12 Criminology
and Criminal Justice 275

Questions
1.

General approach to exclusionary discretions

How far did the enactment of s 78 PACE change the prevailing

approach to the exclusion of evidence that has been unlawfully or
unlawfully obtained?

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S.78 opened up the scope of discretion used by the court when admitting evidence.
PACE s. 78 overturned the House of Lords ruling in R v Sang [1980] that the mens
reas and the actus reus (the guilty factor) was still present regardless of if the act was
induced by the state or not. The fact that the counsellor or procurer was of the state
cannot affect the guilt of the principle offender - making state induced crime only a
mitigating factor. Under s.78 the court now has the power to exclude evidence on
which the prosecution proposes if the court feels that it would have an adverse affect
on the court proceedings thereby impeding the right to a fair trial.

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What criteria have the courts developed for determining when

evidence should be excluded under s 78?
a.

Unlawfully obtained evidence or otherwise improperly obtained evidence

b.

Evidence obtained in breach of ECHR rights

2.

Covert and proactive investigative methods

What do we mean by covert and/or proactive investigative

methods? Give some examples.
Evidence before an arrest, the rise of technology sparked the importance of proactive
policing.
Proactive Investigation: Often targeting known offenders expected to commit a crime.
(i.e.; observation posts and surveillance, tailing)
Covert: The use of secret information gathering techniques of which D is unaware
(police infiltration, informers, electronic means: bugs, monitoring internet use)
Are there any forms of material obtained by covert investigations
that are never admissible in evidence? Why might the decision be
made to require the systematic exclusion of certain types of
probative covert evidence?
The question of how evidence is obtained will usually not affect its admissibility.
Common law approach to covert evidence is that it is lawful unless specifically
prohibited = very restrictive (unless obtained evidence through torture A v Sec State
2005/must be of Ds own free will R v Rennie 1982). Evidence from intercept of
postal or private or public telecommunications systems is inadmissible in law. The
discretionary scope is limited as the court is not concerned with ow the evidence was
obtained1.
There are a variety of rationales for the exclusion of evidence: morally unfair, a court
as a state institution cannot morally be seen to simultaneously condemn the
wrongdoing of the accused and condone that of the police (another state body)2.
Secondly, it is the proper duty of the court to restore the victim of police wrong doing
to the position in which they would have been in had that evidence not been
collected3. Thirdly, the fairness of the process impacts upon the accuracy of the
verdict. Unfair procedures may lead to erroneous factfinding4. PACE and statute
cannot completely deter corruption and if evidence is not checked carefully, adversely
obtained evidence can be admitted as fact and can compromise the case.
What Acts of Parliament and accompanying Codes of Practice
regulate the use of covert and proactive policing? What is the effect

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1 R v Sang [1980] AC 402 per Lord Diplock

2 Duff et. al. The Trial on Trial (2007: Oxford, Hart) 244
3 Doak, J & McGourlay C. Evidence in Context (2012: Routledge) 211
4 Goodpaster, G. On the Theory of the American Adversary Criminal Trial (1987) 78 (1) JLC 118

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of breach by the police of those Codes of Practice on the

admissibility of the evidence?
Police Act 1997 (Damage of Property during surveillance regulating)
Regulation of Investigatory Powers Act 2000: reconciling ECHR & UK Common
Law and its Codes of Practice5
PACE s 78
Entrapment
What is meant by the term entrapment and what is its legal
significance?
The state, through its agents, lure its citizens into committing acts forbidden by the
law and then seek to prosecute them for doing so.
3.

What are the criteria that judges use to decide whether to exclude
evidence obtained from undercover police operations under section
78? Compare and contrast the approach to this question adopted in
Looseley by the House of Lords and that taken by the ECtHR in
Teixeira de Castro v Portugal.
There has been a higher discretion held after the Human Rights Acts 1998 to exclude
evidence obtained unfairly.
a.

having regarded all the circumstances

b.

circumstances to which the evidence was obtained

c.

if it appears that the admission of the evidence would have such an adverse
effect on the fairness of proceedings that the court ought not to admit it6.

In R v Loosely, A grant of a stay is awarded if the conduct of the state was so

seriously improper that the administration of justice was brought into disrepute. In
deciding whether to grant a stay, the Court will consider, as a useful guide, whether
the police did more than present the defendant with an unexceptional opportunity to
commit a crime.
In Loosely, Lords Hoffman and Hutton indicated certain factors that should be
considered in deciding whether proceedings against a defendant should be stayed.
These include:

5 21 Oct 2013 Covert and Proactive Lecture Slides 17

6 Doak, J & McGourlay C. Evidence in Context (2012: Routledge) 214
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Whether the police acted in good faith;

Whether the police had good reason to suspect the accused of criminal activities;
Whether the police suspected that crime was particularly prevalent in the area in
which the investigation took place (Williams v. DPP);
Whether pro-active investigatory techniques were necessary because of the
secrecy and difficulty of detection of the criminal activity in question;
The defendant's circumstances and vulnerability; and
The nature of the offence.
In Teixeira de Castro v Portugal (1999), it was held that there was a breach of
Art 6(1) because the actions of the two police officers (operating outside of a
scheduled operation and without property authorization) had gone beyond those of

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undercover agents. The ECJ does not preclude reliance on evidence from undercover
agents but cautioned the use of undercover agents must be restricted and safeguarded7.
What advice would you give to a police officer contemplating the
use of such methods on what he or she should do to make sure the
evidence is not excluded?
a.

Operation must go through proper channels of authorisation + notice of

superiors

b.

Must not be inducing a crime, but merely guiding the defendent who already
had the intent to commit a crime of the same or similar crime - police doing no
more than giving him an opportunity to fulfil his existing intent.

Do you think, in the light of Loosely, that Williams v DPP [1993] 3 All ER 365
would or should now be decided differently?
4.

Comparing the exclusion of evidence and the abuse of process

doctrine

How does the application of the exclusionary discretion under s 78

differ from the use of the abuse of process doctrine? Consider
consequences and criteria.
Abuse of Process Doctrine: The Courts have an overriding duty to promote justice and
prevent injustice. From this duty there arises an inherent power to 'stay' an indictment
(or stop a prosecution in the magistrates' courts) if the court is of the opinion that to
allow the prosecution to continue would amount to an abuse of the process of the
court.
Bennett v Horseferry Magistrates' Court confirmed that an abuse of process
justifying the stay of a prosecution could arise in the following circumstances:
I.
where it would be impossible to give the accused a fair trial; or
II.
where it would amount to a misuse/manipulation of process because it
offends the court's sense of justice and propriety to be asked to try the accused in
the circumstances of the particular case.
s78 PACE Exclusionary Discretion: Exclusion of Evidence will not necessarily mean
a grant of stay (it may end of the case if the grant if the evidence of the undercover
police officer is excluded, the prosecution will often be unable to proceed). However;
this is not always the case as there may be real evidence of witnesses. Yet, a move to
exclude all of the prosecutions evidence would be a stay in another name.
Essay-type question

The increasing reliance on covert and proactive police methods has posed new
problems for the courts. But, in alliance with the legislator, they have skilfully
constructed a regime that reconciles the need for fact-sensitive balancing of
competing policy and ethical objectives with the need for police officers to know what
they can and cannot do. Discuss.
7 Teixeira de Castro v Portugal (1999) 36
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5.

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Problem question
The police have been informed of the theft of a batch of the latest iPhones from a
local Mobile Phone shop. Aware that a particular pub has a reputation for fencing
stolen goods and having intercepted telephone communications to the public call box
outside the pub talking of such phones being sold for 50, plain clothes officers begin
to frequent the pub. One evening an officer using the code-name Angela strikes up a
conversation with Bill who is using the latest iPhone. Bill says that he got it cheap and
Angela asks if she can get her one. Bill looks dubious but Angela says Id be
prepared to pay 100 for a brand new one. Angela knows that the recommended
retail price for the phone is over 350. Bill says hell think about it. The next day
Angela rings him and offers 200. Bill agrees, a phone is exchanged for money, and
Bill subsequently arrested for handling stolen goods.
Another officer is placed undercover working as a barmaid in the pub under the codename Chrissie. David is a regular and he also has the latest iPhone. She starts chatting
to him and admiring his stylish clothes and jewelry (and the iPhone). Obviously
flattered, he replies that he knows people and never plays the price that the suckers
pay. Chrissie says that she likes a man with influence and contacts and asks him to tell
her more. Eventually David tells her the Phone had been stolen from the Mobile
phone shop. He is arrested a week later but no longer has the iPhone.
Advise Bill and David.
David: Enticed by the flirting barmaid
incomplete offence, never got to the officer, can argue for a stay of proceedings

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