State Entrapment: Professor, Faculty of Law, National University of Singapore

Legal Studies, Vol. 31 No. 1, March 2011, pp.
71–95
DOI: 10.1111/j.1748-121X.2010.00176.x
State entrapment lest_176 71..95
Hock Lai Ho*

Professor, Faculty of Law, National University of Singapore
This paper addresses a cluster of issues. What is state entrapment? Why is it objection-
able? Is it wrong to prosecute the entrapped? What should the court do when the case is
brought before it? These questions are intertwined. To know what is wrong with state
entrapment, we must be clear about what it is; our understanding of what constitutes state
entrapment, with its negative connotation, is shaped by what we think is distinctively
wrong with it; and, we cannot know how the court should deal with state entrapment unless
we identify the precise problem to which a judicial response may be required. The right
response is a permanent stay of proceedings. A stay should be granted because the
executive does not come to court with clean hands. It lacks the standing to blame the
entrapped for what he or she did, and the state lacks the standing to condemn the person
for the same.
INTRODUCTION
Judicial response to state entrapment varies widely in the common law world. In
Singapore,1 and previously in England,2 the fact that the accused was entrapped is
irrelevant at the trial and may only be considered in mitigation at the sentencing stage.
Judges in many countries prefer to react more strongly, for instance by excluding the
evidence obtained as a result of the entrapment (as in Australia3), granting a permanent
stay of proceedings (as in England4 and Canada5), and acquitting the accused on the
ground that state entrapment is a substantive defence (as in the United States6).
This paper passes over detailed doctrinal analysis for an exercise in normative legal
theory. A cluster of issues will be addressed as follows. What is ‘state entrapment’?
Why is it objectionable? Is it wrong to prosecute the entrapped? What should the court
do when the case is brought before it? These questions are intertwined. To know what
* Many thanks to Andrew Choo, Mike Redmayne, Andrew Simester and Jenny Steele for
their helpful comments on different versions of this paper and to the two anonymous referees
for their valuable suggestions. Funding from the Academic Research Fund Tier 1 provided by
the Singapore Ministry of Education (WBS No R-241-000-063-112) and the research assistance
of Anna Toh and Tan Wee Hao are gratefully acknowledged.
1. Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239.
2. R v Sang [1980] AC 402.
3. Ridgeway v R (1995) 184 CLR 19 (since overtaken by federal and state statutes: see, eg,
Australian Commonwealth Evidence Act 1995, s 138). The same response is taken in New
Zealand (eg Police v Lavalle [1979] 1 NZLR 45; now see New Zealand Evidence Act 2006, s
30) and South Africa (Criminal Procedure Act No 51 of 1977, s 252A(3)).
4. R v Looseley, Re Attorney-General’s Reference (No 3 of 2000) [2001] UKHL 53, [2001]
1 WLR 2060 (R v Looseley).
5. R v Mack (1988) 44 CCC (3d) 513.
6. Sorrells v US (1932) 287 US 435, the first in a line of US Supreme Court cases. The law
on entrapment varies at the state level; see P Marcus The Entrapment Defense (Newark: Lexis
Nexis/Matthew Bender, 3rd edn, 2002).
© 2010 The Author. Legal Studies © 2010 The Society of Legal Scholars. Published by Blackwell Publishing, 9600
Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
72 Legal Studies, Vol. 31 No. 1
is objectionable about state entrapment, we must be clear about what a state entrap-
ment is; our understanding of what constitutes a state entrapment, with its negative
connotation, is shaped by what we think is distinctively wrong with it; and we cannot
know how the court should deal with the prosecution of the entrapped unless we
identify the precise problem to which a judicial response may be required. An analysis
of state entrapment is provided in part 1. It will be argued in part 2 that a state
entrapment is intrinsically objectionable when it is understood to possess the features
identified in part 1. Part 3 defends the view that the right response to this improper
form of state entrapment is a permanent stay of proceedings. English and Canadian
courts have already adopted this response, but the manner in which a stay is decided
and explained is unsatisfactory in both jurisdictions. A decision to grant a stay should
be made in a principled manner and explained on the basis that the state lacks the
standing to blame and condemn the accused for the crime the latter was entrapped into
committing. Judges should not be criticised for judicial activism when they take this
course of action. The criminal court has a duty, on a political conception of its role, to
stop the case from going forward.
1. WHAT IS STATE ENTRAPMENT?
As Gaudron J noted in the Australian High Court case of Ridgeway v R: ‘ “Entrap-

ment” is not a term of art; nor is it a term with any precise meaning’.7 It is nevertheless
possible to identify and make explicit the key features in our focal understanding of
the concept. At the centre are the uncontroversial cases, but shades of doubt begin to
appear as we move outward. In whatever form it takes, a state entrapment has five
general features. They are reflected in judicial8 and academic9 expositions of the term,
and also in its ordinary meaning.10
A preliminary matter of terminology must be addressed before we attend to each of
those features. Some writers use the term ‘entrapment’ in the neutral or broad sense.
They say that it is not always improper for the state to resort to the use of ‘entrap-
ment’.11 It is true that not all sting operations, undercover solicitations and the like are
objectionable. On the view taken in this paper, this is because not all of such opera-
tions are entrapments in the strict or negative sense, and not because some entrap-
ments are not objectionable.
The first to fourth features discussed below describe state entrapment in the neutral
or broad sense: it is a covert operation by the police intentionally to tempt a citizen
into committing a crime with the aim of prosecuting him or her for the act. Such an
operation may or may not be proper. It is improper when the fifth feature is also
7. Ridgeway v R, above n 3, at 70.

8. See, eg, Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR 377 at para
27; R v Looseley, above n 4, at [1], [10], and [36]; Sorrells v US, above n 6, at 448 and 442; R
v Mack, above n 5, at 523; S v Malinga and Others 1963 (1) SA 692 at 693F–G; and Application
No 74420/01 Ramanauskas v Lithuania (unreported) 5 February 2008 (ECHR) at para 55.
9. See, eg, J Kleinig The Ethics of Policing (Cambridge: Cambridge University Press, 1996)
p 152.
10. The Oxford English Dictionary defines ‘entrap’ to mean to ‘induce to commit a crime in
order to secure a prosecution’, and cites the following from The Times: ‘He has acted as an agent
provocateur to entrap people and implicate them in crimes which otherwise would not have
been committed’.
11. See, eg, ML Friedland ‘Controlling entrapment’ (1982) 32 U Toronto L J 1 at 3.
© 2010 The Author

Legal Studies © 2010 The Society of Legal Scholars
State entrapment 73
present, where the operation causes the target to commit a type of crime that the
person otherwise would never have done. State entrapment in the strict or negative
sense requires all of the five features to be present. Hereinafter, the strict or negative
usage is adopted unless otherwise indicated.
(a) First feature: intentional temptation

An entrapment is a trap but not every trap is an entrapment. A hidden radar installed
to catch speeding motorists is a police trap. Even so, the drivers who are caught by it
cannot complain that they were entrapped. The police did not (to employ a sample of
verbs used by the courts) lure, instigate, entice, induce, badger, cajole, pressurise,
wheedle or coax the person to commit the crime. Some such element, call it inten-
tional temptation, is necessary for entrapment. Intentional temptation refers broadly to
an act of which the various verbs are examples of its overlapping forms. There are
differences among them: for example, one can entice without instigating, as in the
baiting example below. Each form of intentional temptation can vary in strength.
The intentional temptation may be offered under the description of an act that is
criminal, as when I point you to an unlocked car, tell you it contains valuables and
encourage you to steal them. There are other ways of holding out criminal tempta-
tions. The police sometimes resort to baiting. In one case, they left a van unattended
in a public space, with its roller shutter partially up and displaying cartons of ciga-
rettes.12 Here, the police intentionally tempted theft by providing an unusually easy
opportunity for pulling it off. Even though they did not tell anyone to steal, their
intention was to entice greedy passer-bys into doing just that. This is different from the
situation where I park my car along a street and forgetfully leave a door open. If the
temptation of taking the belongings therein proves too much, you cannot say that I had
entrapped you into stealing. I did not intend to tempt you into crime. But precisely that
intention does exist in the case of baiting. A minority of lawyers resists the classifi-
cation of baiting as a form of entrapment.13 This resistance may have to do with the
fact that the target was not verbally tempted by any state agent. The predominant view
is that such communicative contact is not a necessary feature of entrapment.
The police sometimes go further than the intentional temptation of a crime
by participating in its execution. For instance, an undercover officer may supply
to the target the missing chemical he or she needs for the illicit manufacture of
methamphetamine14 or illegally import narcotics for a dealer looking for a
source.15 But the police need not go that far; an operation can still count as a state
entrapment even where the police had left it to the target to draw on his or her own
resources in the execution of the instigated crime.
12. Williams v DPP (1993) 98 Cr App R 209.

13. G Yaffe ‘ “The government beguiled me”: the entrapment defense and the problem of
private entrapment’ (2005) 1 J of Ethics and Social Philosophy 1, available at http://
www.jesp.org/articles/. In Williams v DPP, above n 12, at 212, a baiting case, the judge doubted
the correctness of the prosecution’s concession that there was an entrapment. Cf R v Looseley,
above n 4, at [65]: Lord Hoffmann observed that random baiting in an area where the relevant
type of crime was not known to be prevalent could amount to an abuse of state power. Contrary
to the position taken in this paper, he seemed to be of the view that the police cannot be said to
have ‘caused’ the target to commit the crime where they had merely provided bait: at [59].
14. US v Russell (1973) 411 US 423.
15. Ridgeway v R, above n 3.
© 2010 The Author

(b) Second feature: nature of operation – covert and deceitful

Not every covert and deceitful police operation is an entrapment. It is not an entrap-
ment when a spy infiltrates a criminal gang merely to obtain inside information on its
activities; the first feature is absent. When we think of an entrapment, we naturally
think of a covert operation, involving an element of lying, masquerading, conceal-
ment, misrepresentation and the like. Must an entrapment be covert and deceitful?
Suppose a uniformed policeman goads someone to hit him and both of them know that
the policeman is just looking for an excuse to make an arrest.16 Is this an entrapment?
Our intuition is a bit ambivalent here because the questions ‘what is entrapment’ and
‘why is it objectionable’ are intertwined and our core objection to entrapment is not
that it is covert and deceitful. Some may subscribe to a concept of entrapment broad
enough to encompass cases of the sort just described, while others may not. This much
can be safely said: in the focal case of entrapment, the tempter acts in the dark, taking
care to conceal his or her ploy from the victim. What is the ploy behind state
entrapment?
(c) Third feature: aims of operation

This brings us to the third feature. The aim of a state entrapment is to tempt someone
into performing a criminal act while under secret police observation and, on the basis
of the evidence obtained in or as a result of the operation, to prosecute the person for
the offence. The temptation is designed to counter whatever inhibitions the target may
have about breaking the law, to promote his or her choice to commit an illegal act
where that commission is central to the end sought. Contrast this with a situation
where a businessman seeks to bribe a public official. He is driven by the benefits he
hopes to obtain and not, as such, by the desire to see the public official commit a
crime. In a state entrapment, the illegality of the conduct the police are trying to incite
is not incidental; the goal is to get the target to commit a crime and not to do something
that happens to be criminal.17 What motivates the operation from the start is the desire
to have the person convicted and punished. This is different from the true corruption
case where both parties desire the crime to go undetected. It is also unlike the typical
‘entrapment’ by a journalist where the primary aim is to expose misconduct and boost
sales of newspapers. This is an entrapment only in a loose sense. In any event, it is not
a state entrapment because the next feature is also absent.
(d) Fourth feature: state agents as entrappers

In a state entrapment, and unlike a private one, the operation is conducted by the
government. The involvement of the state is as clear as it can be where the operation
is carried out by an undercover police officer with the prior authorisation of his or her
superior who, in turn, is legally empowered to give the authorisation. What if the
officer acts without proper authorisation or an informer contacts the police only after
he or she has instigated a person to embark on the criminal venture? Such non-focal
cases present difficult issues of state agency, the examination of which cannot be
undertaken here.
16. I thank Mike Redmayne for this example.

17. On this aspect of state entrapment, see Yaffe, above n 13, at 38.
© 2010 The Author

State entrapment 75
The envisaged role of the state does not end with the entrapment; it extends to the
prosecution that follows. What we have at the trial is a situation where the executive
arm of the state is seeking to have the accused convicted of the offence that it had
tempted him or her to commit. The person responsible for the entrapment and the
person carrying out the prosecution are both agents of the executive branch. This is
true notwithstanding the separation of duties and responsibilities and the indepen-
dence of the police force and prosecution service. These two institutions are central
components of the official system of law enforcement. Their functions are integrated:
the prosecutor has to work with the case it is given by the police and the major point
of police investigation is to supply the prosecutor with a case to prosecute.18
(e) Fifth feature: causation and the counter-factual test

Finally, and most crucially, the intentional temptation held out by the state must have
caused the accused to commit the charged offence.19 A counter-factual conception of
causation is offered and elaborated on in part 2 below; briefly, someone is caused by
the state to commit a crime, and entrapped into doing so, only if the crime is of a type
that the person would otherwise never have done.20 One can seldom be certain that the
person would never otherwise have committed such a crime. Usually, there is only a
basis for believing that this is likely true. What is the degree of probability required for
an entrapment to be established? This seems to be a question about the applicable
standard of proof. We will deal with it later. Until then, and for convenience, ‘never’
will be used without qualification.
At this point, it is enough to offer a few clear examples just to introduce the fifth
feature. Causation in the counter-factual sense is lacking where the target is about to
do the very thing you are trying to get him to do (you try to lure him into making
counterfeit currency when he is already in the middle of a plan to do exactly that) or
where you provide him with the criminal opportunity that he is already actively
seeking (he solicits sex with under-aged girls by leaving messages and his telephone
number in public toilets and you contact him with pretended interest).21 The same idea
has been conveyed by the European Court of Human Rights. In a number of cases, it
has rejected the claim of entrapment because the police had not ‘initiated’ the criminal
activity but had merely ‘joined’ it.22 An English example of the latter scenario is R v
18. In England, the ‘investigation into a crime is carried out by the executive, in the form of
the police. The police under the supervision of the independent Crown Prosecution Service
. . . charge the defendant with the offence, prepare the case against him and seek to prove it at
the trial’: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47 at [16].
19. On causation in entrapment cases, see J Feinberg ‘Causing voluntary actions’ in J Feinberg
Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University
Press, 1970) pp 173–176. Causation is required even on the ‘objective’ approach to entrapment
taken in some states in the USA: Marcus, above n 6.
20. As Gleeson CJ noted in R v Sloane (1990) 49 A Crim R 270 at 272–273: ‘whatever its
precise effect may be, the concept of entrapment involves as a necessary element the idea that
an accused person has been induced to commit a crime which he or she otherwise would not
have committed or would have been unlikely to commit’.
21. R v Jones [2008] QB 460.
22. Application No 74355/01 Milinienė v Lithuania (unreported) 24 June 2008 at para 38;
Application No 10071/04 Malininas v Lithuania (unreported) 1 July 2008 at para 37.
© 2010 The Author

Winter:23 no entrapment was found because the defendant had intended to smother his
estranged wife before the undercover agent was roped in to help create an alibi.
2. WHAT IS WRONG WITH STATE ENTRAPMENT?
(a) Intrinsic versus consequential objections

The objection to state entrapment may be grounded in its harmful consequences.
Some say that it breeds distrust in society.24 Others claim that it is wasteful of police
resources. Many have evaluated such operations by weighing the social costs and
benefits of their deployment25 and subjecting them to an economic analysis. Seidman
summarises the ‘basic insight driving the efficiency argument’ thus:26
‘There is no need to incapacitate individuals who respond to offers unlikely
ever to be made in the real world, and punishing these individuals adds nothing
whatever to the deterrent threat that already exists against individuals who respond
to more realistic offers.’
Our objection to state entrapment is not merely that it has undesirable conse-
quences that outweigh the benefits. We also object to it for what it is. Why is state
entrapment intrinsically wrong? The present part searches for the answer. Having
found it, we will examine the implications in relation to the prosecution of the
entrapped in part 3.
(b) The intrinsic wrongfulness of state entrapment

What is intrinsically wrong with state entrapment? The answer is tied to how we
conceptualise the activity. First, one might object to it as the wrong way of investi-
gating crimes. While we are indeed dealing with an activity that raises issues of ethics
in policing, this view pegs the problem at too high a level of generality. In a state
entrapment, the police do not merely investigate an offence; they induce it, causing a
citizen to commit a type of crime that he or she would otherwise never have done. This
is the source of our specific misgiving.
Alternatively, state entrapment can be viewed as a method of obtaining evidence.
On this view, the problem of state entrapment is the problem of how far the state can
go in getting incriminating evidence. Deceptive techniques are sometimes tolerable,
especially if there is adequate supervision and regulation. The laws of many countries
sometimes allow ‘bugging’ and admission into evidence of statements secretly
recorded by the police. State entrapment is one of the methods that go beyond the pale.
23. [2007] EWCA Crim 3493.

24. S Levinson ‘The hidden costs of infiltration’ (1982) 12 The Hastings Center Report 29.
25. W Sinnott-Armstrong ‘Entrapment in the net?’ (1999) 1 Ethics & Information Technology
95 at 101.
26. LM Seidman ‘Entrapment and the “free market” for crime’ in PH Robinson, SP Garvey
and K Kessler Ferzan (eds) Criminal Law Conversations (Oxford: Oxford University Press,
2009) pp 496–497. See, eg, RJ Allen, M Luttrell and A Kreeger ‘Clarifying entrapment’ (1999)
89 J of Criminal Law and Criminology 407; RH McAdams ‘The political economy of entrap-
ment’ (2005) 96 J of Criminal Law and Criminology 107 and ‘Reforming entrapment doctrine
in United States v Hollingsworth’ (2007) 74 U of Chicago L R 1795; B Hay ‘Sting operations,
undercover agents, and entrapment’ (2005) 70 Missouri L R 387.
© 2010 The Author

State entrapment 77
It is an improper means of getting evidence, to be placed alongside other objectionable

methods such as illegal search and seizure, coercive extraction of confessions and
unauthorised wiretapping.27 Again, this view does not identify the nub of the problem.
There is a conceptual difference between state entrapment and these other types of
improper police conduct. State entrapment is not about obtaining evidence of an
offence after its commission; it is about securing the commission of the offence and,
at the same time, obtaining evidence to prove it at a trial.28 This point is brought home
by judicial remarks that state entrapment involves the police ‘manufacturing’29 or
‘creating’30 or ‘procuring’31 the commission of a crime.
The distinctive wrongfulness of state entrapment does not lie in the deceptiveness
of the operation or in the fact that it involves an intentional temptation of crime. There
are more kinds of deceptive practices than entrapment and not every intentional
temptation to commit crime amounts to one (recall our bribery example). Indeed, the
state not only may but should sometimes covertly tempt the commission of an
offence.32 The police cannot abide strictly by a reactive policy, under which they start
an investigation only after the deed is done and a complaint received. It is widely
accepted that law enforcement agencies may sometimes employ proactive techniques
that involve a degree of subterfuge and trickery.33 These are necessary to combat
certain types of offences, for example those that are ‘victimless’ (such as sale of illicit
drugs to willing buyers), those in which the ‘victims’ are kept in the dark (as when
members of the public are unaware that their trust is being violated by corrupt
officials), and those where the victims are too afraid to complain to the police (which
is common in extortion and blackmail cases).34
To link this back to our five features of state entrapment: the presence of the first
to fourth features does not necessarily make the operation wrongful. It is not always
improper for the police (fourth feature) intentionally to tempt someone to commit a
crime (first feature) by covert and deceitful means (second feature) and with the aim
of bringing a prosecution (third feature). We have a case of state entrapment, which is
objectionable as such, only when the fifth feature is also present. It is wrong of the
police to cause the target to commit a crime where he or she would never otherwise
have engaged in that kind of conduct. This wrong is intrinsic to entrapment; it defines
the activity. An added aspect of the wrongfulness of a particular instance of entrap-
ment may adhere in some non-essential features. It is reprehensible for an undercover
agent to cultivate intimacy with someone so that he can, through manipulation of the
27. See, eg, RC Donnelly ‘Judicial control of informants, spies, stool pigeons, and agent
provocateurs’ (1960) 60 Yale LJ 1091 at 1111.
28. See, eg, Sorrells v US, above n 6, at 454; Law Commission Criminal Law – Report on
Defences of General Application Law Com No 83 (1977) pp 44–45.
29. Sherman v US (1958) 356 US 369 at 372; US v Russell, above n 14, at 445.
30. Sorrells v US, above n 6, at 451.
31. Ibid, at 454.
32. J Braithwaite, B Fisse and G Geis ‘Covert facilitation and crime: restoring balance to the
entrapment debate’ (1987) 43 J of Social Issues 5.
33. As noted in many cases, eg, Summit Holdings Ltd v PP [1997] 3 SLR 922 at para 50;
Sorrells v US, above n 6, at 441; Sherman v US, above n 29, at 372; R v Looseley, above n 4,
at [2] and [3].
34. G Dworkin ‘The serpent beguiled me and I did eat: entrapment and the creation of crime’
(1985) 4 Law and Philosophy 17 at 18. See also US v Russell, above n 14, at 444; R v Mack,
above n 5, at 522.
© 2010 The Author

person’s affection, get her to do his criminal bidding.35 The outrageousness of this
method of entrapment gives us reason for objection that is additional to the fact that
the person was entrapped. But the fact that the person was entrapped is of itself
objectionable.
The intrinsic wrongfulness of state entrapment translates into another problem
when the case is brought before the court. A problem of moral standing arises when
the executive seeks the conviction and punishment of those citizens who have suc-
cumbed to its temptation. State entrapment is self-defeating. The ultimate aim is
undermined by its effect. According to the fourth feature, the immediate objective is
to tempt a person to commit a crime and the ultimate aim is a successful prosecution.
To prosecute someone for a crime is to blame the person for it. The prosecution is
successful when the court delivers a guilty verdict. A conviction expresses condem-
nation of the accused for the charged offence. In the case of state entrapment, the
executive lacks the moral standing to seek, and the court lacks the moral standing to
express, this condemnation. We will more closely examine the problem of standing
only in part 3. The task of the present part is to clarify the intrinsic wrongfulness of
state entrapment. But we have first to consider some alternative descriptions or
locations of the wrong to the one offered here.
(c) Random testing of virtue

The random way in which an ‘entrapment’, understood in the wide sense, is carried
out by the state has attracted the criticism that this amounts to ‘virtue testing’.36 The
state should not, without reasonable suspicion that any specific individual is about to
do a criminal act or is engaged in an ongoing criminal activity, randomly tempt the
commission of an offence. The police should not leave an unattended wallet on a park
bench in the hope that someone would succumb to the temptation to steal.
Gerald Dworkin argues that the government may embark on an ‘entrapment’ ‘only
if they have probable cause to suppose that the individuals approached are already
engaged or are intending to engage in activity of a similar nature’.37 The existence of
‘probable cause’ or reasonable suspicion matters presumably because it minimises the
risk of an actual entrapment, that is, the risk of causing the target to commit a type of
crime from which the person would otherwise have stayed away. Our objection to the
general practice of virtue testing is largely driven by our worry about this risk
materialising. But the existence of reasonable suspicion does not eliminate this risk.
The information on which the suspicion rests may be false. In the event that the target
was actually entrapped, the moral standing of the state to prosecute and convict the
person is problematic. It is no answer that the police were reasonable (although, as it
turned out, wrong) in their suspicion that the target was already engaged or had
intended to engage in the relevant criminal activity.
The information that the police have may not relate to any specific individual.
Sometimes, all they know is that a certain place is a ‘hotspot’ for a criminal activity.
Most legal systems allow the police, under suitable conditions, to undertake a
35. See Washington v Lively (1996) 921 P2d 1035 (Supreme Court of Washington).
36. See, eg, R v Mack, above n 5, at 560 per Lamer J: ‘it is not a proper use of the police power
to simply go out and test the virtue of people on a random basis’.
37. Dworkin, above n 34, at 33. In Canada, the lack of reasonable suspicion is built into the
definition of entrapment: R v Mack, above n 5, at 559.
© 2010 The Author

State entrapment 79
proactive and covert operation in that location to lure criminals out.38 This has drawn
criticisms from a number of writers.39 They fear that the net may be cast too wide.
Depending on the circumstances, the person who is caught may have all along been
prepared to commit the kind of crime in question (in which case, there is no entrap-
ment) or it may be that he or she would never have committed such a crime without
state instigation (in which case, there is an entrapment).40 We are back to the same
point. We oppose the practice of virtue testing because it creates too high a risk of an
actual entrapment. When this risk materialises, it should be no excuse that the place
where the accused was entrapped happened to be a crime hotspot.
Random ‘virtue testing’ is not always objectionable. It is common for the state to
issue special licences to carry on certain trades (for example sale of alcohol or
tobacco) subject to restrictions (such as prohibition of sale to minors). There is
considerable acceptance of so-called ‘compliance testing’, where random test pur-
chases are conducted to check on licensors’ willingness to comply with those restric-
tions.41 For example, a minor may be sent into a shop to conduct a simple test-
purchase of alcohol or cigarettes. The fifth feature of entrapment is absent where the
purchase is sought under ‘a fair replication of the situation which licensees would face
in real conditions’;42 in such circumstances, there is no reason to believe that sale to
a minor is a type of conduct from which the shop-owner would ordinarily have
refrained.43 The same cannot be said if the minor offered a large sum of money for a
pack of cigarettes.
(d) Mala fide use of entrapment

It is worse when the entrapped was deliberately targeted for the wrong reason than
when he or she was randomly chosen. A police officer, ‘anxious to improve his
detection record’,44 or worse, out for personal vengeance, resorts to the use of
38. See, eg, R v Looseley, above n 4, at [27] per Lord Nicholls and [65] per Lord Hoffmann;
R v Mack, above n 5, at 552–553; R v Barnes [1991] 1 SCR 449.
39. See, eg, A Ashworth ‘Re-drawing the boundaries of entrapment’ [2002] Crim L R 161 at
168–169; S Bronitt ‘The law in undercover policing: a comparative study of entrapment and
covert interviewing in Australia, Canada and Europe’ (2004) 33 Common Law World Review
35 at 51; and D Ormerod and A Roberts ‘The trouble with Teixeira: developing a principled
approach to entrapment’ (2002) 6 International J of Evidence and Proof 38 at 52.
40. Eg R v Moon [2004] EWCA 2872.
41. Eg in Syon v Hewitt [2006] IEHC 376 at [6.13], a case involving illegal sale of tobacco to
a minor, the Irish High Court held: ‘the practice of random test purchases is permissible and,
indeed, necessary in such cases’. The practice is similarly condoned in England (DPP v
Marshall [1988] 3 All ER 683), Australia (Robinson v Woolworths Ltd (2005) 153 A Crim R
546) and New Zealand (eg McGrogan v Scenic Cellars Partnership Ltd [2006] NZAR 170; but
cf Fitzsimons v The Mean Fiddler Ltd [2008] NZAR 73 where there was a positive and criminal
misrepresentation of age by the test purchaser). Test purchases are sometimes explicitly autho-
rised by statute (eg Trade Description Act 1968, s 27 (England and Wales)), but, in Canada, they
need not be (eg R v Clothier [2009] OJ No 4495 (unreported) 14 October 2009).
42. Taylor v Vandna Enterprises Ltd AP 22/PL02, 25 July 2002 (High Court, Auckland) per
O’Regan J at para 22, quoted in Fitzsimons v The Mean Fiddler, above n 41, para 19.
43. Generally, see R v Thornton [2003] EWCA Crim 919 at [24] (test purchase of drugs from
a willing seller not an entrapment).
44. R v Sang, above n 2, at 443, per Lord Salmon.
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entrapment.45 Our objection to the motivation behind the entrapment is additional to

the fact of entrapment. This is similar to the point made earlier: just as how an
entrapment is executed may make it especially pernicious, that an entrapment is badly
motivated may open it to stronger censure. The mala fide nature of a police operation
is independently objectionable. Suppose an opposition politician occasionally takes
marijuana at parties and this is illegal. He accepts an offer by a planted government
agent at one such social event. This is not an entrapment since he was not led into a
type of behaviour from which he would otherwise have refrained. But that does not let
the government entirely off the hook. We would still disapprove of the operation as an
under-handed way of destroying political opposition.46
(e) The counter-factual test of causation

The intrinsic wrongfulness of state entrapment does not have to do with its random or
mala fide nature. As suggested above, it lies in the state having caused a citizen to
commit a type of crime that he or she would otherwise never have done. The court has
ultimately to judge whether it is, on the evidence, sufficiently confident that the target,
‘if left to his own devices’,47 would never have committed the type of crime. Since the
accused is seeking to take advantage of the fact of entrapment, and since this fact is
extraneous to the issue of his or her guilt, there is much to recommend the Canadian
position of making the accused carry the burden of proof.48 The standard of proof is
the balance of probabilities and not beyond reasonable doubt. Applying the Canadian
approach to the present proposal, the accused does not have to prove categorically that
he or she would never have committed the relevant kind of offence had it not been for
what the government did; it is enough to establish that it is unlikely that she would ever
do so. Henceforth, the qualification ‘probably’ will be used to convey this point.
In the final analysis, the claim that the accused would probably never have com-
mitted the type of offence in question, had the state not intervened, amounts to the
claim that the person would probably not otherwise have encountered temptation of
the form and degree to which the state had subjected him or her.49 If the test were
whether the state had caused the specific crime for which the person is now charged
and if we were to understand ‘cause’ in the ordinary ‘but for’ sense, the test would be
satisfied in every case: ‘it is a feature of all pro-active techniques that but for the
actions of law enforcement officials the crime for which the defendants are charged
would, almost certainly, not have been committed’.50
It is true that an official would not have acted corruptly on a particular day had he
not been offered a bribe on that day by the particular undercover officer. Assume the
bribe is within the range a market player would pay a person holding the same office
for the requested favour. We could have a case where the official would have
45. For a case coming close to this scenario: Hampton v US (1976) 425 US 484. Cf R v Mack,
above n 5, at 569.
46. The existence of ulterior motive or malice is potentially an independent basis for arguing
that the trial is an abuse of process; see J Rogers ‘The boundaries of abuse of process in criminal
trials’ (2008) 61 Current Legal Problems 289 at 304–305 and Law Society of Singapore v Tan
Guat Neo Phyllis, above n 1, paras 132 and 147.
47. Jacobson v US (1992) 112 SCt 1535 at 1543.
48. R v Mack, above n 5, at 567–568.
49. See D Squires ‘The problem with entrapment’ (2006) 26 OJLS 351.
50. Dworkin, above n 34, at 25.
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State entrapment 81
committed an act of that type even without the involvement of the state; the temptation
to be corrupt is a hazard of public office, and had he been offered the same bribe by
a genuine source, there is nothing to suggest he would not have accepted it too.51 If
there is any special reason to think otherwise, it is only fair that the official should
carry the burden of proving it on the balance of probabilities. When the claim of state
entrapment fails, it is not necessarily because the official had at all material times the
general intention52 to indulge in acts of that kind. It can fail even if he had no such
pre-existing intention. Of crucial importance is whether the official can prove that,
without state engineering, it was unlikely that he would face temptation of the form or
degree to which he was exposed.
Entrapment is not established on the counter-factual test if the suspect was tempted,
on the relevant occasion, by a kind of opportunity that for him was easy to come by.
If a plain-clothes officer flags a taxi and the driver stops to pick him up even though
he is not licensed to ply in that area, there is no reason to believe that he would not
have behaved in the same way had a genuine customer flagged him instead.53 Being
flagged is not out of the ordinary for a taxi driver. Or suppose a policewoman dresses
as a shopper, carries a handbag, and mingles with the crowd in a mall. The snatcher
who goes after her cannot complain of entrapment.54 He can hardly claim that the state
had pushed him in a criminal direction that he would otherwise have eschewed.
Conversely, it is relevant to the accused’s claim of entrapment that the government had
induced him ‘to commit a crime outside [his] league’, as when a small-time thief
offering to sell a stolen television is persuaded by the undercover officer to engage in
a big-time narcotics deal.55
The degree of pressure that was brought to bear on the target is relevant under the
counter-factual test. If the accused initially resisted the criminal inducement, and
needed years of relentless badgering and elaborate manipulation by the government
agent before finally yielding, it is safe to conclude that he was entrapped.56 Had the
person been left alone, it is unlikely that he would ever have had to contend with such
extraordinarily vigorous and persistent inducements. In each case, the critical issue is
whether the government got the accused to commit a crime of a kind that, probably,
he or she would never otherwise have done. This can be a very difficult question to
answer, but it is the right question to ask.
51. That we should focus on the type rather than the token of the crime, see N Levy ‘In
defense of entrapment in journalism (and beyond)’ (2002) 19 J of Applied Philosophy 121 at
124. See also R v Sloane, above n 20, at 273 per Gleeson CJ: ‘the reference to committing a
crime which otherwise would not have been committed is a reference to a form of conduct
rather than to a particular transaction’.
52. On which, see A Altman and S Lee ‘Legal entrapment’ (1983) 12 Philosophy and Public
Affairs 51 at 57: ‘A general intention is an intention to commit an action of a certain type
without thought of specifics such as time and place’, whereas a ‘specific intention is an intention
to commit an action of a certain type such that the time and place are exactly or approximately
determined’.
53. Nottingham City Council v Amin [2000] 1 WLR 1071.
54. This example is given by Feinberg, above n 19, p 173 and also in ‘Criminal entrapment –
instigating the unpredisposed’ in his Problems at the Roots of Law: Essays in Legal and
Political Theory (Oxford: Oxford University Press, 2002) p 59.
55. Hypothetical example given in Jenkins v Government of USA [2005] EWHC 1051 at [20].
See also R v Looseley, above n 4 (second of the conjoined appeals): a dealer in contraband
cigarettes was incited to traffic in heroin for the first time.
56. For an example of an unusually persistent and highly contrived entrapment operation, see
eg, Jacobson v US, above n 47.
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The proposed counter-factual test is different from two other approaches. One of
them uses the concept of predisposition and the other an objective standard.
(f) Criminal predisposition of the target

A key element of the subjective test of entrapment adopted by the US Supreme Court
is that the target was not predisposed to commit the crime he or she was induced by
the government to commit.57 On the proposed counter-factual approach, criminal
predisposition has evidential value but is not determinative. The complaint of entrap-
ment should not be entirely closed to the predisposed if predisposition is taken to
mean only pre-willingness, a state of mind. It matters not just whether the target was
pre-willing to commit an offence but also whether, without the police facilitation, he
or she would have had the ability, opportunity or means to carry it off.58
Suppose a person has always dreamt of robbing a bank. He has never done it
because he does not know how. He is the fumbling sort whom any criminal gang
would reject as a liability. Along comes an undercover officer who arms him with a
plan and a fake pistol. Thus equipped, he embarks on the criminal venture. As he is
about to carry off the cash, he is pounced upon by officers lying in wait. Although he
committed a crime he was predisposed to commit, can we still not say that he was
entrapped by the state? Had it not been for the government interference, he would
probably never have had the means or the opportunity to commit bank robbery. Even
though there seems not to be any significant moral difference between the unlucky
predisposed individual who is induced to act and the lucky one who never meets his
inducer,59 the state has no business altering the ‘natural odds’ of stepping into crime.60
As Katz puts it:61
‘Everyone . . . is entitled to his turn at the wheel of fortune. If he is lucky, he
will never be faced with a situation in which his criminal disposition surfaces.
Entrapment is a way of rigging the wheel. Perhaps . . . we mutter “There, but for
the grace of God, go I.” That is better than: “There, but for the grace of God, the
government, and moral vigilantes”.’
(g) An objective standard of excessive temptation

On the objective approach to entrapment, the focus is on the degree of inducement that
was offered. The target is considered to have been entrapped only if the police had
gone too far in tempting him or her to commit the charged offence. Thus, in R v
Looseley, Lord Nicholls of Birkenhead stated: ‘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’.62 As to what counts
as excessive, an objective standard is applied. It is sometimes expressed in terms of
57. See Marcus, above n 6, ch 2.

58. The majority in US v Hollingsworth (1994) 27 F3d 1196 incorporated this feature into the
concept of predisposition. See especially at 1199.
59. As suggested by Feinberg, above n 19, p 176.
60. Feinberg, above n 54, pp 75–76.
61. L Katz Bad Acts and Guilty Minds – Conundrums of the Criminal Law (Chicago: Chicago
University Press, 1987) pp 160–161.
62. Above n 4, at [28].
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State entrapment 83
what would be enough to overcome the ‘average person’, ‘normally law-abiding

person’, ‘reasonable person’, or ‘some other undefined and purely hypothetical
person’.63
Commentators have noted a number of difficulties with this approach. Even if the
benchmark of ‘a normally law-abiding person’ can be adequately identified, the test is
biased against the gullible and inexperienced, those who are especially suggestible.64
It has also been argued that a higher than ordinary standard should be applied to
certain persons, such as those holding public offices.65 Most importantly, a police
inducement that is excessive by some objective standard may not play the required
causal role. Suppose an undercover agent promises the accused that she will get his
seriously ill child much needed medical attention if he secures for her a big consign-
ment of narcotics. Unknown to her, he is exceptionally cold-hearted, does not care
about his child and agrees to do the job only for personal gains. Let us say he is already
into drug dealing. Objectively speaking, it is pernicious of the police to try to manipu-
late a person in the manner set out in this example. However, the police conduct did
not cause the accused to commit the crime in the counter-factual sense and its
perniciousness ought not to be something to which he (this callous father) can appeal
in his favour.66
Can we say instead that the temptation was not excessive if all the government did
was to offer, to use a common expression, an ‘unexceptional opportunity’ to offend?
On one view, what counts as exceptional is determined objectively with reference to
the standard practices of the criminal market. As McHugh J put it in Ridgeway v R:
‘The state can justify the use of entrapment techniques to induce the commission of
the offence only when the inducement is consistent with the ordinary temptations and
stratagems that are likely to be encountered in the course of criminal activity’.67 This
objective approach does not withstand scrutiny.
Test it this way. A young man has never taken heroin and his social circle is
drug-free. He is secretly curious about the experience and interested in giving it a try.
But he studies at a private school that is strictly run, lives in an exclusive district, does
not know any drug dealer and will never dare to approach one. It is a crime to possess
and consume heroin. An undercover agent in a random operation makes the first move
and approaches the young man with an offer of the drug at the ‘street’ price. No
‘stratagem’ is employed that is beyond the stock in trade of an ordinary drug pusher.
The target accepts the offer. Although the criminal opportunity presented by the state
was unexceptional in the sense that the temptation was not excessive by some objec-
tive standard, why would we not see this as an entrapment? The government,
intentionally and with a view to prosecution, tempted the person into crime. Impor-
tantly, the offence is of a kind that probably he would never have committed had it not
been for the opportunity created by the government, an opportunity that likely he
would not otherwise have or seek out.68 The opportunity was for him exceptional; it
was subjectively exceptional.
63. See Marcus, above n 6, p 86.

64. Altman and Lee, above n 52, at 64.
65. Kleinig, above n 9, p 161.
66. Even on the objective approach taken in the USA, ‘the defendant must show that the
conduct of government, in fact, induced him to commit the crime’: Marcus, above n 6, p 100.
67. Above n 3, at 92 (dissenting judgment), citing R v Looseley, above n 4, at [23] per Lord
Nicholls and [102] per Lord Hoffmann.
68. See majority judgment in US v Hollingsworth, above n 58.
© 2010 The Author

The counter-factual test produces an opposite result with the following change of
scenario. Imagine, instead, that the young man lives in a poor and ‘drug-infested’
neighbourhood. Opportunities to buy heroin are aplenty. Drug dealers are at every
corner tempting him with ready offers. He has the fortitude to resist until one day
when curiosity gets the better of him. The person from whom he buys the drug is an
undercover police officer. By the proposed counter-factual test, he is not entrapped.
Does this not show that our test is unfair? It recognises an entrapment in the first case
but not in the second. It follows from the position taken in this paper that the first case
should be stayed but not the second. Why should the law, in effect, treat the rich (the
one who lives in a well-protected and drug-free social environment) better than the
poor (the one who is trapped in a crime-ridden world)?69
What justifies the different treatment is not that the former is legally less culpable
than the latter. It is that in the first case but not the second, the person is being
prosecuted for a type of crime he would probably never have committed had the state
not intervened. As will be argued in part 3, satisfaction of the counter-factual test
undermines the executive’s standing to prosecute the accused for the offence (blame
him for it) and the court’s standing to express condemnation of the same through a
conviction. This is not to deny the existence of unfairness. While there is background
unfairness in the social distribution of criminal temptations, this does not make it right
for the government to entrap someone who is more fortunately situated.70 Secondly,
our examples illustrate the general truth that being caught up in the criminal justice
system is frequently a matter of circumstantial luck. But the problem of circumstantial
luck is not unique to state entrapment. It is a problem that pervades criminal law and
is perhaps an insoluble paradox.71 Thirdly, that there was no state entrapment in the
second case does not foreclose the theoretical possibility of another argument for
challenging the authority to prosecute that directly engages the larger problem trou-
bling us. This is the problem of ‘just deserts in an unjust society’:72 ‘How can
punishment be fair in a society that is not itself equitable?’73 If a person is born into
poverty and an environment in which criminal temptations abound and are extraordi-
narily difficult to resist, the state’s moral standing to condemn the person for finally
succumbing is questionable where he or she is trapped in that environment by unjust
exclusion from a fair share of socio-economic opportunities and goods.74
69. Cf Squires, above n 49.

70. Cf McAdams, above n 26, at 144–145.
71. Eg N Eisikovits ‘Moral luck and the criminal law’ in J Keim Campbell, M O’Rourke and
D Shier (eds) Law and Social Justice (Cambridge, MA: MIT Press, 2005).
72. A von Hirsch Doing Justice – The Choice of Punishments (New York: Hill and Wang,
1976) ch 17.
73. A von Hirsch Censure and Sanctions (Oxford: Clarendon Press, 1993) p 106. Some would
claim, as does DL Bazelon ‘The morality of the criminal law’ (1976) 49 California Law Review
385 at 385, that ‘there can be no truly just criminal law in the absence of social justice’. For a
sample of the literature, see WC Heffernan and J Kleinig (eds) From Social Justice to Criminal
Justice – Poverty and the Administration of Criminal Law (New York: Oxford University Press,
2000).
74. To cite just one of many writings by RA Duff in this area: Answering for Crime –
Responsibility and Liability in the Criminal Law (Oxford: Oxford University Press, 2007)
pp 191–193.
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State entrapment 85
3. WHAT SHOULD THE COURT DO ABOUT STATE ENTRAPMENT?
How we think the court should respond to state entrapment will depend on our
conception of the function of the criminal trial.
(a) Acquittal: state entrapment as a substantive defence

One option is for the court to treat state entrapment as a substantive defence and to
deliver an acquittal. It is the function of the criminal court to protect the innocent from
conviction and victims of entrapment are ‘otherwise innocent’.75 The Supreme Court
of the United States has taken this approach, with the majority of judges treating the
defence as a matter of statutory interpretation: ‘it cannot be supposed that the Con-
gress intended that the letter of its enactment should be used to support such a gross
perversion of its purpose’ as instigating citizens to commit crimes for the purpose of
punishing them.76 This imputation of legislative intention has been criticised as a sheer
fiction.77 Unsurprisingly, the defence is not recognised in any other major jurisdiction.
It is difficult to see how entrapment can by itself absolve the accused from
culpability. It is true that the manner in which the entrapment was executed may
negate an element of the crime; arguably, no copyright offence is committed if the
undercover agent had the consent of the copyright owner to instigate replication of the
work.78 It is also possible for the facts of an entrapment to constitute an independent
defence as when the inducement was so strong that the entrapped can be said to have
acted under duress.79 None of these special cases, however, makes entrapment ipso
facto a defence. According to Lord Hoffmann in R v Looseley,80 it is a matter of
‘intellectual coherence’ that entrapment cannot be a defence since it causes the
accused ‘to do the prohibited act with the necessary guilty intent’. This is too quick an
explanation. While entrapment does not negate the accused’s mens rea or actus reus,
the same holds for a number of established defences.81 Why should entrapment not
excuse criminal liability in the same way as duress and necessity? One might argue
that, in all these cases, the accused is tempted to commit a crime in such a volitionally
compromising manner as to make the person not fully responsible for his or her
action.82
This argument was rightly rejected by the Canadian Supreme Court in R v Mack.
It noted that:83
75. Sorrells v US, above n 6, at 441.

76. Ibid, at 452.
77. Sherman v US, above n 29, at 379; Ridgeway v R, above n 3, at 20.
78. Law Society of Singapore v Tan Guat Neo Phyllis, above n 1, at 294–295.
79. This and other examples are given by Friedland, above n 11, at 16–17.
80. Above n 4, at [37].
81. A Choo Abuse of Process and Judicial Stays of Criminal Proceedings (Oxford: Oxford
University Press, 1993) p 151.
82. PM Hughes ‘Temptation and culpability in the law of duress and entrapment’ (2006) 51
Crim L Q 343.
83. Above n 5, at 545–546. See also PH Robinson Structure and Function in Criminal Law
(Oxford: Oxford University Press, 1997) pp 79–80. Entrapment does not belong together with
defences such as duress because there is a crucial distinction between a threat and an offer; see
LM Seidman ‘The Supreme Court, entrapment, and our criminal justice dilemma’ (1981) 5
Supreme Court Review 111 at 133 and 139.
© 2010 The Author

‘while there is a limit, imposed by external events, on the accused’s freedom

of choice of action in all three cases of duress, necessity and entrapment[,] there
is . . . a great difference in the quality and degree of pressure in the entrapment
situation: it is less intense and the circumstances are not morally agonizing to the
accused.’
More importantly, if entrapment negates or reduces the culpability of the accused,
it should not do so only in ‘situations where it is the state, and not a private citizen,
who is the entrapping party’.84 If a person entrapped by the police is ‘innocent’, why
is he or she not just as ‘innocent’ when similarly entrapped by an ordinary citizen?
Even in the USA, there is no defence of private entrapment.85
(b) Non-intervention
Another option is for the court to reject entrapment as a defence and adopt a position
of general non-intervention. Underpinning this position is the belief that the function
of the court is strictly the ascertainment of guilt by applying the criteria set out in the
substantive criminal law to the facts as found. If all of the elements of the crime as
stipulated by the applicable rules of criminal law are proved and no defence applies,
the broader circumstances relating to how the executive caught the accused, including
the fact of entrapment, are irrelevant. The court may admonish the police for using
improper investigative tactics86 or acknowledge that entrapment is a ground for miti-
gation at the sentencing stage87 (provided there is no mandatory punishment for the
offence) and, for all that, insist that the proper thing to do is to let the trial proceed. To
the criticism that the judiciary should not turn a blind eye to police impropriety, the
reply is that the alleged impropriety is better dealt with in some other forum better
suited to address it; the possibilities include a separate criminal, civil or disciplinary
proceeding (a narrow approach that deals specifically with the offending officers)88 or
a legislative solution (a broad approach that regulates law enforcement agencies by
imposing general standards).89
According to the Singapore High Court in Law Society of Singapore v Tan Guat
Neo Phyllis, it is not an abuse of legal process to prosecute the entrapped because:90
‘the true nature of abuse in state entrapment cases is the abuse of state
power . . . by state agents deliberately breaking the law to instigate the accused to
commit an offence which he otherwise would not have committed and then pros-
ecuting him for that offence. The nature of the abuse is not directed at the process
of the courts, whose function is to determine the guilt or otherwise of the accused
on the evidence produced before the court . . . [T]he invocation of the court process
for the bona fide prosecution of criminals . . . is not an abuse of process.’
84. R v Mack, above n 5, at 546.

85. US v Hollingsworth, above n 58. Cf Katz, above n 61, pp 158–159.
86. See, eg, Brannan v Peek [1948] 1 KB 68 at 72; R v Birtles [1969] 1 WLR 1047 at
1049–1050; Browning v JWH Watson (Rochester) Ltd [1953] 1 WLR 1172 at 1177.
87. R v McCann (1971) 56 Cr App R 359; Tan Boon Hock v PP [1994] 2 SLR(R) 32. See also
R v Sang, above n 2, at 451. Contrast Amato v R (1982) 69 CCC (2d) 31 at 74–75.
88. See, eg, R v Sang,ibid, at 436; Hampton v US, above n 45, at 490.
89. Below n 130.
90. Above n 1, para 138 (original emphasis). See also Ridgeway v R, above n 3, at 40.
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State entrapment 87
The premise of this reasoning is that the court’s function is no more than ‘to
determine the guilt or otherwise of the accused on the evidence produced before the
court’.
(c) Stay of proceedings

The above is too narrow a conception of the court’s function. State entrapment calls
for a judicial response. The proper response is to stay the criminal proceedings. Judges
are not guilty of judicial activism when they act in this way. On the contrary, they are
discharging their judicial duty.
To describe the criminal trial simply as a ‘search for the truth’, aimed only at
convicting the guilty and acquitting the innocent, fails to capture its political role in a
liberal democracy and its place in the system of checks and balances necessary for
limited government. The criminal trial is the process whereby the court, as an inde-
pendent institution of the state, holds the executive to account on its request that the
state, through the court, convict (condemn) and punish a person for an alleged crime.91
The central point is public provision by the executive of justification for the request
and critical scrutiny by the court of that justification. In the jurisdictions that we are
looking at, the court cannot act on its own. It is for the executive to start the trial
process by blaming a person for a crime and it is for the court to accept or reject the
executive’s call for state condemnation of the same. No conviction can be secured
without the action and concurrence of both arms of the state. The administration of
criminal justice, specifically the legitimacy of a criminal verdict, is their joint respon-
sibility; they each play a part in the integrated system of checks and balances through
which the state (and the state as a whole) enforces the criminal law.
On this understanding of the function of the criminal trial, it should be open to the
defence to question the moral standing of the state to blame (prosecute) and condemn
(convict) the accused. This standing is self-forfeited in the case of state entrapment in
its unacceptable form, as defined in part 1. The executive, by virtue of its involvement
in the offence, is in no position to blame the citizen for it.92 The entrapment
also undercuts the court’s standing to issue state condemnation in the form of a
guilty verdict. These two grounds complement one another in supporting a stay of
proceedings. (As we will see in the discussion on private prosecution, one can exist
without the other, and each alone may provide sufficient support.)
(d) Inadequacy of exclusion of evidence

Here, a slight digression before returning to the main argument. A stay is a better
judicial response than the mere exclusion of evidence obtained in the entrapment.
91. See generally Ho Hock Lai ‘Liberalism and the criminal trial’, forthcoming in a joint issue
of Singapore J of Legal Studies and Sydney Law Rev.
92. See generally RA Duff ‘ “I might be guilty, but you can’t try me”: estoppel and other bars
to trial’ (2003) 1 Ohio State J Crim Law 245; Duff, above n 74, ch 8; A Duff et al (eds) The Trial
on Trial: Towards a Normative Theory of the Criminal Trial vol 3 (Oxford: Hart, 2007) ch 8;
V Tadros Criminal Responsibility (Oxford: Oxford University Press, 2005) p 319; J Rogers
‘The boundaries of abuse of process in criminal trials’ (2008) 61 Current Legal Problems 289
at 293–295.
© 2010 The Author

Australian common law takes the latter approach.93 Friedland has argued that this is
not a sound technique for controlling entrapment. Even if the evidence of the entrap-
per is excluded, the prosecution may yet have other evidence with which to press on
with its case. Arbitrariness is then introduced into the conviction: for example, ‘if
another witness happens to be present the accused will be convicted; if the entrapper
and the accused are alone, he will not’. Friedland concludes that ‘[t]he entrapment
should either directly affect the result or it should not’.94 While the conclusion is
sound, the argument in support of it misses the mark. The accused is not asking to be
acquitted because he or she is innocent. To claim that one has been entrapped is to
admit guilt. To this extent, whether or not there is evidence of guilt is irrelevant to the
objection that is being raised. As noted above, what is objectionable about state
entrapment is not (merely) that the state had obtained evidence improperly but that it
had improperly brought about the offence. The situation is not one where admission
of the evidence would compromise the fairness of the trial as normally understood;95
the question is whether there should be a trial in the first place.96 As Lord Nicholls
rightly observed in R v Looseley, ‘[e]ntrapment goes to the propriety of there being a
prosecution at all for the relevant offence, having regard to the state’s involvement in
the circumstances in which it was committed’.97
(e) State entrapment and the standing to prosecute and convict

According to Lord Nicholls in R v Looseley, state entrapment is a ‘misuse of state
power’ that oppresses citizens.98 He also claimed that it is an abuse of process to
prosecute the person who was entrapped. These are separate claims. That the state has
misused its power in apprehending someone does not mean that it is therefore an abuse
of process to prosecute the person. Since the entrapped did commit a crime, why
should he or she not be prosecuted? And does the court not abuse its own process in
letting free someone whom it acknowledges to be guilty as charged? Unless we have
good answers to these questions, we are forced to retreat with the Singapore judiciary
to the position of general non-intervention.
Judges often point out that the police should be preventing and detecting crime
rather than inciting or creating it.99 The state, through the police, acts perversely when
it encourages citizens to flout the criminal law. Gerald Dworkin has argued:100
93. It does so by extending to entrapment cases the general discretion to exclude illegally or
improperly obtained evidence. See Ridgeway v R, above n 3. It is unclear whether exclusion of
evidence is an option in Canada: R v Imoro (2010) 251 CCC (3d) 131 (Ontario Court of Appeal)
at para 28; it is in England (although a stay is the preferred option): R v Looseley, above n 4.
94. Friedland, above n 11, at 22–23. Similarly, see R v Looseley, above n 4, per Lord Nicholls
at [16].
95. Panday v Virgil [2008] UKPC 24, [2008] 1 AC 1386 at [28]. The European Court of
Human Rights takes an unusually wide interpretation of ‘fair trial’: A Choo Abuse of Process
and Judicial Stays of Criminal Proceedings (Oxford: Oxford University Press, 2nd edn, 2008)
p 148.
96. See Law Commission, above n 28, pp 44–45; views expressed therein judicially endorsed
in R v Looseley, above n 4, at [36], and see also [42].
97. R v Looseley, ibid, at [17].
98. Ibid, at [1].
99. Eg, Sherman v US, above n 29, at 372 and 384.
100. Dworkin, above n 34, at 32.
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State entrapment 89
‘the [criminal] law is set up to forbid people to engage in certain kinds of

behavior. In effect it is commanding “Do not do this.” . . . But for a law enforce-
ment official to encourage, suggest, or invite crime is to, in effect, be saying “Do
this.” It is certainly unfair to the citizen to be invited to do that which the law
forbids him to do. But it is more than unfair; it is conceptually incoherent.’
A principled case for a stay of prosecution might rely on some sort of estoppel
argument that seems implicit in the above passage. The state has, by its act of
instigation, indicated approval of the conduct it had brought about. In the subsequent
prosecution, the state takes the opposite position by calling for condemnation of that
conduct.101 There are problems with this argument. Given that the role of the govern-
ment was deliberately hidden, the accused cannot claim that he or she had received
official approval for doing what she did. Another difficulty is in finding any represen-
tation made in the entrapment that the conduct was not illegal or not punishable.102 The
target will usually be aware of the criminal nature of what he or she is urged to do.103
Indeed, persuasion is needed precisely to overcome the perceived risk of getting
caught by the law. The estoppel argument cannot work.
An alternative argument is that a conviction would violate the integrity of the court
process.104 On one interpretation, the court should protect its authority or reputation
from being tarnished by association with the objectionable police behaviour and the
best way to distance itself is to stay the proceedings against the entrapped. Another
interpretation is that it would be inconsistent for the court to convict the accused,
while letting the undercover officer off. On a more intricate reading, the argument is
that the branches of the criminal justice system are so structurally and normatively
integrated that the violation of any of its underpinning values by one branch (the
police) cannot be ignored by another (the criminal court) without disrupting that
normative unity.105 On all of these versions, the stay is justified on grounds that go
beyond doing justice in the particular case; the aim is to protect the authority or, less
persuasively, reputation of either the court or the criminal justice system as a whole.
But the argument cuts both ways: ‘judicial integrity is [also] undermined when the
public perceives that factually guilty people are getting away’.106
The claim that a stay is needed to do justice in the case itself requires a different
argument in its support. A stay is proper because, in the first place, the prosecutor does
not come to court with clean hands. As Roberts J reasoned in Sorrells v US:107
101. See Duff et al, above n 92, p 243.

102. Yaffe, above n 13, at 22.
103. It is a standard practice of the US Federal Bureau of Investigation to ‘make clear and
unambiguous to all concerned the illegal nature of any opportunity used as a decoy’: GS
Katzmann Inside the Criminal Process (New York: WW Norton, 1991) p 81.
104. See, eg, A Ashworth ‘Testing fidelity to legal values: official involvement and criminal
justice’ in S Shute and AP Simester (eds) Criminal Law Theory: Doctrines of the General Part
(Oxford: Oxford University Press, 2002).
105. See, in a different context, TS Schrock and RC Welsh ‘Up from Calandra: the exclusion-
ary rule as a constitutional requirement’ (1974) 59 Minnesota Law Review 251.
106. SM Summit Holdings Ltd v PP, above n 33, para 48.
107. Sorrells v US, above n 6, at 455. Objection to the admission of entrapment evidence is
often expressed in terms of the prosecution’s lack of ‘clean hands’ in South Africa: see, eg,
decision of the Supreme Court of Appeal of South Africa in Case No 320/07 Hammond v State
[2007] SCA 164 (29 November 2007) paras 10 and 22, available at http://www.
supremecourtofappeal.gov.za/judgments/sca_2007/sca07-164.pdf and the judgments of the
South African High Court in S v Nortjé 1997 (1) SA 90 (C) at 103E–F, S v Reeding [2005]
© 2010 The Author

‘Always the courts refuse their aid in civil cases to the perpetuation and
consummation of an illegal scheme . . . Neither courts of equity nor those admin-
istering legal remedies tolerate the use of their process to consummate a wrong.
The doctrine of entrapment in criminal law is the analogue of the same rule applied
in civil proceedings.’
Civil judges have, in turn, drawn an analogy with the criminal law in explaining the
clean-hands principle. The history of family law provides the best examples. It used to
be that a petitioner for divorce had to establish that the spouse was guilty of a
matrimonial offence such as adultery. If the petitioner had ‘connived’ in the adultery,
this constituted a bar to the relief.108 In Woodbury v Woodbury, Tucker LJ explained
this bar ‘on the principle that the complaining spouse must come to the court with
clean hands and that it would be unconscionable to give relief to one who . . . had
encouraged . . . the adultery of his or her matrimonial partner’.109 In Douglas v Dou-
glas,110 Lord Denning gave the example of the husband who ‘throws [the wife and
another man] together before he believes that adultery has taken place’. According to
the judge:
‘If he sees an association ripening into close friendship and then promotes
and encourages it to turn into adultery, he is guilty of connivance. He then has a
corrupt intention, because he is not seeking to prove an existing offence, but is
trying to provoke a new one.111 He is then truly an agent provocateur. So also if he,
being already guilty himself, wants a divorce for his own reasons, and then throws
his suspected wife into temptation so as to obtain proof for his own ends. That is
also a corrupt intention.’112
‘General depravity’ is insufficient to bar a claim on the equity principle of unclean
hands.113 The impropriety complained of ‘must have an immediate and necessary
relation to the equity sued for’.114 As Pomeroy puts it: ‘A court of equity is not an
avenger of wrongs committed at large by those who resort to it for relief . . . The dirt
upon [the plaintiff’s] hands must be his bad conduct in the transaction complained
of’.115
If the extension of the equitable clean-hands principle to the criminal context were
to come with a requirement similar to that which we have just discussed, the require-
ment would be easily met in all cases of state entrapment. In such cases, the wrong-
doing is intimately connected to the offence being tried since the state is prosecuting
ZAWCHC 13; 2005 (2) SACR 631 (C) para 4 of the judgment of Bozalek J, available at
http://www.worldlii.org/cgi-bin/disp.pl/za/cases/ZAWCHC/2005/13.html?query=reeding and
S v Hassen 1997 (2) SA 253 at 255.
108. See Matrimonial Causes Act 1857, s 31. This provision was substantially reproduced in
subsequent legislation: eg Matrimonial Causes Act 1950, s 4. ‘The doctrine of connivance
. . . goes back long before the Matrimonial Causes Act, 1857, to the days of the ecclesiastical
courts’: Rumbelow v Rumbelow [1965] P 207 at 219.
109. Woodbury v Woodbury [1949] P 154 at 165.
110. [1951] P 85 at 98.
111. Eg Manning v Manning; Fellows v Fellows [1950] 1 All ER 602.
112. Eg Allen v Allen (1859) 30 LJP 2.
113. J McGhee et al (eds) Snell’s Equity (London: Sweet & Maxwell, 31st edn, 2005) p 99.
114. Dering v Earl of Winchelsea (1787) 1 Cox Eq 318 at 319–320.
115. JN Pomeroy A Treatise on Equity Jurisprudence as Administered in the United States of
America [Spencer W Symons (ed)] vol 2 (San Francisco: Bancroft-Whitney, 5th edn, 1941) at
§399.
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State entrapment 91
the accused for the very crime that it had wrongfully instigated. The connection is as
close as in the civil example of the husband instigating his wife to commit adultery so
that he can then have a ground to divorce her. However, not all cases of police
impropriety will satisfy it.
Take the situation where the police obtain evidence of a crime by illegal means
after it has been committed. There is no connection between the police impropriety
and the subject matter of the prosecution. It was not in any way due to the police
impropriety that the crime was committed. We cannot say in this case as we can of
state entrapment that (to paraphrase Pomeroy) ‘the dirt on the hands of the police is
their bad conduct in the crime complained of’. While the state can arguably dissociate
itself from the illegal obtaining of evidence by prosecuting the errant officer for his or
her misconduct, there is no similar way for the executive to ‘clean’ its hands after an
entrapment. One may consistently disapprove of the means by which the evidence was
obtained without questioning its reliability or condoning the crime. But the court
cannot accede to the executive’s call for the accused to be condemned for a crime
when its standing to make that call is undercut by the fact that it had entrapped the
accused into committing that very crime. This fact remains, and it is beside the point,
whether the entrapper is also punished for his or her role.116 The only way for the
executive to ‘clean’ its hands is to give up on the wrongful enterprise by not following
it through with a prosecution.
(f) Private prosecution

Another attraction of the clean-hands theory is its ability to explain possible differ-
ences in the treatment of state and private entrapments. A private entrapment is not
conducted by any agent of the state; the fourth of the features discussed in part 1 is
absent. In the uncomplicated case, and we will deal with the complications shortly, the
third feature is also absent; for example where a journalist sets out to ‘entrap’
someone, the aim is usually to get a newsworthy story to sell and not, as such, to
secure a criminal conviction. It is typically only after the story is published that the
police enter the picture. The problem of dirty hands does not arise in the state
prosecution that follows. In most of the reported cases, it cannot be said that had it not
been for what the journalist did, the person would probably never have engaged in the
relevant kind of misconduct. Even where this can be said, it is difficult to see how the
role of the journalist undercuts the moral standing of the state to condemn the accused
for the crime he or she has committed. It is therefore unsurprising that judges have
taken the view that private and state entrapments should generally not be approached
in the same way.117
116. Cf Duff, above n 74, p 188.

117. Eg R v Hardwicke [2001] Crim LR 220 at [22] of the judgment; Shannon v United
Kingdom [2005] Crim LR 133; Council for the Regulation of Health Care Professionals v
General Medical Council and Saluja [2007] 1 WLR 3094 (in the last case, at [81], the court did
not rule out that the conduct of a non-state agent might be so serious that admission of his
evidence would compromise the integrity of the court). K Hofmeyr ‘The problem of private
entrapment’ [2006] Crim LR 319 at 336 contends, for different reasons, that ‘the abuse of
process doctrine is inapplicable in cases of private entrapment’. Cf Wong Keng Leong Rayney
v Law Society of Singapore, above n 8, paras 65–68; Law Society of Singapore v Tan Guat Neo
Phyllis, above n 1, para 47.
© 2010 The Author

In discussing state entrapment, reference is often made to the incident at the

Garden of Eden that led to the fall of Man.118 But that was, to put it loosely in modern
idiom, a case of private entrapment. There was no identity of tempter and condemner;
indeed, the distance between God and the Serpent could not have been greater. God’s
authority to castigate Eve was not undermined by the Serpent’s conduct. Any analogy
with state entrapment is profoundly misplaced because the crucial point did not figure
at all in the biblical tale: for the state to blame the accused for the offence it had
instigated is akin to the Serpent blaming Eve for eating of the forbidden fruit.119
In the uncomplicated situation that we have been looking at, the fact that the
accused was privately entrapped should not bar a state prosecution.120 But complica-
tions can arise from three sources, each of which renders the position unclear. First, in
a state entrapment, the state sets out to instigate the accused to commit a crime with
the aim of prosecuting the person for it. Secondly, after the person is caught, the state
follows through the plan with a criminal prosecution. Thirdly, a guilty verdict, if
delivered by the court, amounts to a condemnation by the state. Each of these – the
catching, the prosecuting and the condemning – may be done by a private citizen or
body.
First, it is possible for a private entrapment to share the aim of a state entrapment.
We could have a citizen ‘playing (bad) police’ and conducting the operation for the
purpose of getting the target prosecuted by the state and put behind bars. Arguably, the
executive is complicit in this wrongful enterprise if it chooses to bring a prosecution;
for, in doing so, it is playing its envisaged role in achieving the intended end. If this
is right, and the hands of the prosecutor are tainted, the proceedings should be stayed.
Secondly, a private entrapper might undertake a private prosecution instead of
relying on the state to commence proceedings. If the rationale for a stay is simply to
curb abuses of executive power, it is inapplicable here because the executive is
involved in neither the entrapment nor the prosecution. But a stay would seem equally
appropriate in the present context if the basis is the prosecutor’s lack of standing to
bring the charge; in this case, the individual who is seeking to blame the accused does
not appear before the court with clean hands.121 A private prosecution may come about
differently. Suppose the executive, to their credit, decides not to prosecute the person
whom the police had entrapped. A citizen refuses to let the matter rest and initiates a
private prosecution. Even if the citizen’s moral standing to prosecute is unaffected by
the state entrapment, the court’s moral standing to condemn is. The court lacks the
moral standing to condemn the accused in the name of the state because the state had,
through the police, entrapped the accused into committing the charged offence.
Thirdly, the condemnation need not be by the state in the form of a court convic-
tion. When, say, a doctor is censured by a disciplinary committee for breach of
professional rules, the condemnation is by the profession. Imagine a reporter out for
a good story. She embarks on a sting operation to get a doctor to issue a false medical
118. Eg R v Sang, above n 2, at 446; Sorrells v US (1932) 57 F2d 973 at 976 (4th Cir); A Carlon
‘Entrapment, punishment, and the sadistic state’ (2007) 97 Virginia Law Review 1081 at
1082–1083.
119. My thanks to Michael Furmston for this point.
120. See, eg, US v Hollingsworth, above n 58, at 1203 per Chief Judge Richard A Posner, sitting
in the US Court of Appeals for the Seventh Circuit: ‘There is no defense of private entrap-
ment . . . A person hired to commit a crime cannot defend on the ground that the hirer offered
him so much money that it broke down his resistance’.
121. See R (Dacre and Another) v Westminster Magistrates’ Court [2009] 1 Cr App R 6 at [31]
and [32].
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State entrapment 93
certificate. When the matter comes to light, a disciplinary proceeding is instituted. The
‘prosecutor’ (the body seeking blame) is the medical body and not the reporter.122 Why
should the involvement of the journalist undermine the standing of the General
Medical Council to condemn the doctor for his misconduct? This is not to say that a
private entrapment can never justify a stay of disciplinary proceedings. A dirty-hands
problem can arise. If the law society were to engage private investigators to entrap its
members in the misconduct of touting, and this is done for the sake of making
disciplinary examples of them, the standing of the society to blame those members for
their breaches is questionable.
(g) Granting a stay: a principled versus a consequentialist approach

English and Canadian courts share the view taken in this paper that a stay is the proper
response to state entrapment. But there are significant differences between the
approach of those courts and that suggested here. For convenience, and without
putting too much store on the principle–policy distinction, the two approaches will be
called the principled and the consequentialist approach, respectively.
On the principled approach, a stay is required because state entrapment undermines
the standing of the state to prosecute and convict the accused for the crime it had
entrapped him or her into committing. What undermines the standing is not the gravity
of the police misconduct considered objectively, but its impact on the accused: did it
cause this person to commit a kind of crime that he or she would probably never
otherwise have done? The court is dispensing individualised justice rather than for-
mulating policies on policing.
The consequentialist approach, on the other hand, is driven by broader (systemic)
considerations relating to the general harmful consequences that would arise if the
court were to ignore the police misconduct. A variety of instrumental justifications are
given for a stay: it is supposedly to protect the integrity and reputation of the
judiciary123 and to maintain public confidence in it,124 to contain the abuse of executive
power,125 and to uphold the rule of law.126 In deciding whether to grant a stay, ‘the
overall 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’.127 There are differences in the English and Canadian approaches, the
details of which need not detain us.128 Generally speaking, both involve a ‘balancing
exercise’ and reliance on an all-things-considered or pragmatic style of reasoning. To
be considered are matters such as the following. Was the operation properly super-
vised? Was the nature of the offence such as to require the use of a trap? Were other
techniques of investigation available?
122. Council for the Regulation of Health Care Professionals v GMC, above n 117, at [83].
123. R v Mack, above n 5, at 540.
124. Ibid, at 542.
125. R v Looseley, above n 4, at [40].
126. Ibid, at [19].
127. Ibid, at [25].
128. Eg in R v Mack, above n 5, at 565, the Canadian Supreme Court held that the application
for a stay should be decided by the judge after a finding of guilt has been made. In England, on
the other hand, the issue of abuse of process tends to be heard in advance of the trial: Choo,
above n 95, p 168.
© 2010 The Author

On this approach, the court grants a stay, not in response to the particular demands
of the case before it, but to some larger socio-political problem.129 In reaching its
decision, the court balances competing considerations in an attempt to delimit per-
missible enforcement strategies. But it lacks the ‘ground knowledge’ to perform this
task well. Arguably, the executive130 and the legislature are better qualified to regulate
investigative practices, a task that should be informed by a sophisticated understand-
ing of the practical realities faced by the police and undertaken in the wider context of
devising a system of controls, immunities and supervision. The framework is best set
by the legislature, as the product of democratic adjustments of competing interests,
and with administrative guidelines as supplements. Comprehensive review and wide
consultation can be expected of the legislative process but not of the criminal trial.131
Judges arguably lack the knowledge, resources and legitimacy to do the necessary
groundwork and make value choices of the sorts that are at stake.132
Adoption of the principled approach enables the judiciary to deflect the criticism of
over-reaching. Judges are not telling the police how to do their job. It gives no cause
for alarm to anyone who subscribes to the view that the ‘supervision of police conduct
is not by itself a function of the courts’.133 Implicit in the acknowledgment of an
inherent power to prevent abuse of the legal process is the recognition that it is a
fundamental part of the judicial function, within a constitutional framework that
acknowledges the need for some system of checks and balances, to scrutinise the
legitimacy of criminal prosecutions. A stay is granted by the court in pursuance of its
inherent duty as a criminal court to hold the executive to account on its request for a
guilty verdict.134 A stop is put to the proceedings not pursuant to any ambition to
subvert the separation of powers;135 neither is it to further any self-interested agenda
129. See, in a different context, Ridgeway v R, above n 3, at 41: ‘the question of unfairness to
a particular accused is ordinarily of but peripheral importance in deciding whether evidence of
an illegally procured offence should be excluded on public policy grounds’. See also at 38:
‘Ordinarily, . . . any unfairness to the particular accused will be of no more than peripheral
importance’.
130. For examples of executive self-regulation of undercover operations in the US, see The
Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations 30
May 2002, available at http://www.usdoj.gov/olp/fbiundercover.pdf (part V deals with ‘Protec-
tion of innocent parties against entrapment’), and in the United Kingdom, see Undercover
Operations: Code of Practice issued jointly by all UK police authorities and HM Customs and
Excise.
131. S Bronitt and D Roche ‘Between rhetoric and reality: sociolegal and republican perspec-
tives on entrapment’ (2000) 4 International J of Evidence and Proof 77 at 99 argue that ‘reliance
on judicial pronouncements to regulate policing practices has limitations’ and recommend a
comprehensive ‘statutory regime regulating entrapment’ (at 105). Friedland, above n 11, at 20
and 30, also prefers a legislative solution to a judicial one. For an example of legislative
regulation of investigatory operations in England, see Regulation of Investigatory Powers Act
2000, and the code of practice issued thereunder. For Australian examples, see P Marcus and
V Waye ‘Australia and the United States: two common criminal justice systems uncommonly at
odds’ (2004) 12 Tulane J of International and Comparative Law 27 at 75–78 and for a critical
review of legislation regulating covert police operations in Australia and Canada, see Bronitt,
above n 39.
132. Seidman, above n 83, at 143–144.
133. Ridgeway v R, above n 3, at 90–91 per McHugh J.
134. See Panday v Virgil, above n 95, at [34]: entrapment is an issue that ‘should properly be
resolved within the criminal process itself rather than by way of a judicial review challenge’.
135. Cf Ridgeway v R, above n 3, at 32–33.
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State entrapment 95
of protecting the institutional prestige of the judiciary; rather, the court grants a stay
in the discharge of its constitutive function.
The question is not whether the police officers or their agents have acted too
shabbily by some general standards.136 Judicial intervention is not aimed at expressing
disapproval of police behaviour (although the court may do that in its judgment), nor
at curbing the abuse of executive power (although the decision may have that effect).
Neither is a stay granted to protect the entrapped or to uphold any of his or her
rights.137 As a matter of principle, state entrapment undermines the authority of the
prosecution to charge and blame the accused for the crime in question, and this, in
turn, undermines the standing of the court to convict and condemn the accused. In
deciding whether to grant a stay, the test ought to be the counter-factual question
discussed in part 2: is the crime with which the accused is charged of a type that,
without the state interference, he or she would probably never have committed? This
goes to the question of whether there should be a trial at all, a matter that falls
indisputably within the judicial domain.
CONCLUSION
Common law legal systems take various positions on state entrapment. Exceptionally
it is treated as a substantive defence, as in the USA. Elsewhere, it is a basis for the
exclusion of evidence (as in Australia) or a stay of proceedings (as in England and
Canada). The last is the most appropriate judicial response. Although English and
Canadian courts are already prepared to take this course of action, a stay is decided on
an all-things-considered or ‘balancing’ approach and the rationale tends to be
expressed diffusely in terms of consequential considerations, institutional interests,
the need to curb excesses of executive power and so forth. A principled approach
should be taken to avoid the criticism of judicial over-reaching.
The trial is the process whereby the executive is held to account on its request that
the court, in the name of the state, convicts and thus condemns someone for an
offence. Where the person was entrapped by the state into committing it, the request
should not be entertained. In a state entrapment, the police employ covert means to
tempt the target into crime with a view to securing a conviction, and, crucially, the
crime is of a type that the person would otherwise probably never have done. Given
the nature of state entrapment, the prosecution that follows it should be stayed. The
executive, by reason of its dirty hands, lacks the standing to blame the entrapped for
what he or she did, and the state lacks the standing to condemn the person for the
same.
136. Contrast Ormerod and Roberts, above n 39, at 56: ‘The proposal offered here is simply to
concentrate not on the characteristic of the individual target but the police, and by doing so
emphasise that it is the propriety of the police conduct that should be at the forefront of the
inquiry’.
137. On the difficulties of a rights-based justification, see Hofmeyr, above n 117, at 333–334.
The US Supreme Court has held that state entrapment does not violate any protected right of the
defendant and hence does not attract the due process clause: Hampton v US, above n 45, at
490–491 and US v Russell, above n 14, at 430.
© 2010 The Author


State Entrapment: Professor, Faculty of Law, National University of Singapore

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Legal Studies, Vol. 31 No. 1, March 2011, pp.

State entrapment lest_176 71..95

Hock Lai Ho*

1. WHAT IS STATE ENTRAPMENT?

As Gaudron J noted in the Australian High Court case of Ridgeway v R: ‘ “Entrap-

7. Ridgeway v R, above n 3, at 70.

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(a) First feature: intentional temptation

12. Williams v DPP (1993) 98 Cr App R 209.

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(b) Second feature: nature of operation – covert and deceitful

(c) Third feature: aims of operation

(d) Fourth feature: state agents as entrappers

16. I thank Mike Redmayne for this example.

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(e) Fifth feature: causation and the counter-factual test

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2. WHAT IS WRONG WITH STATE ENTRAPMENT?

(a) Intrinsic versus consequential objections

(b) The intrinsic wrongfulness of state entrapment

23. [2007] EWCA Crim 3493.

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It is an improper means of getting evidence, to be placed alongside other objectionable

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(c) Random testing of virtue

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(d) Mala fide use of entrapment

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entrapment.45 Our objection to the motivation behind the entrapment is additional to

(e) The counter-factual test of causation

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(f) Criminal predisposition of the target

(g) An objective standard of excessive temptation

57. See Marcus, above n 6, ch 2.

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what would be enough to overcome the ‘average person’, ‘normally law-abiding

63. See Marcus, above n 6, p 86.

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69. Cf Squires, above n 49.

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3. WHAT SHOULD THE COURT DO ABOUT STATE ENTRAPMENT?

(a) Acquittal: state entrapment as a substantive defence

75. Sorrells v US, above n 6, at 441.

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‘while there is a limit, imposed by external events, on the accused’s freedom

84. R v Mack, above n 5, at 546.

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(c) Stay of proceedings

(d) Inadequacy of exclusion of evidence

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(e) State entrapment and the standing to prosecute and convict

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‘the [criminal] law is set up to forbid people to engage in certain kinds of

101. See Duff et al, above n 92, p 243.

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(f) Private prosecution

116. Cf Duff, above n 74, p 188.

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In discussing state entrapment, reference is often made to the incident at the

© 2010 The Author