Ringing the Death Knell for the Entrapment Defence – Paedophile Vigilantes and the Law - BSQ Briefing

 BSQ partner Roger Sahota examines TL[2018] EWCA Crim 1821  the most important decision on the abuse of process doctrine handed down by the Court of Appeal in many years.

 Every criminal court has the inherent power to stop a prosecution (or 'stay' an indictment in the Crown Court) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court. This power is an important bedrock of the rule of law. It allows the courts to act independently of the state by striking down a prosecution where there is a risk that a defendant may not receive a fair trial.

 This power arises because, as famously stated by the House of Lords in the landmark case of Bennett [1994] AC1

“the judiciary accept(..) responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

 It is a power that is most commonly used in cases where there has been improper or even unlawful conduct by an agent of the state such as a police or customs officer in the course of an investigation leading up to the prosecution of an individual. However, it can in principle apply to any complaint of impropriety as the recent case of TL[2018] EWCA Crim 1821 demonstrates.

 The decision in TL is interesting because it lays down guidelines for when the criminal courts should stop prosecutions where “non-state actors” – specifically citizen vigilantes known as “paedophile hunters” – are said to have behaved improperly when investigating criminal conduct that is later brought to the attention of the authorities and results in criminal prosecutions. 

 As over 50% of contested trials in the crown court now feature allegations of sexual misconduct, there are now many cases where the conduct of unregulated organised groups of so-called “paedophile hunters” come under the spotlight. A common defence strategy in these cases is to apply for a prosecution to be stopped under the “abuse of process” doctrine based on complaints that the “paedophile hunters” involved have acted improperly in “entrapping” the accused by inciting that individual to commit an offence they would otherwise not have contemplated.

 Such was the position in TL. TL faced charges of attempting to meet a child following sexual grooming. Online he had met someone he believed to be a 14 year old female and via Whatsapp arranged for them to meet at his flat for a sexual encounter with his girlfriend. Unbeknownst to him TL was actually communicating with Mr U, the organiser of a group called “Predator Hunters,” posing as the child. Police were tipped off and arrested TL when he attended the meeting they had arranged.

 At trial the Defence said the Accused had been unfairly enticed into a trap. The Trial Judge agreed and ordered a “stay” or dismissal of the prosecution as an abuse of process. He found that ‘Predator Hunters” had acted improperly because they conducted themselves “like an internet police force, and … behave(d) in a proactive way, in order to obtain evidence on which to mount a prosecution”.

 On appeal the Court of Appeal reversed that decision. It said that theoretically the abuse of process doctrine could be applied where “non-state actors” had acted improperly.[1] But, the Court held it would be very rare to find a case where the facts justified stopping a prosecution. The Court did not speculate about what those unusual circumstances might be. However, it considered the actions of the Predator Hunters group in this case, and by extension other groups of a similar ilk, fell far short of the type of misconduct they had in mind;-

 "the zeal of some "vigilantes" may lead them to seriously improper conduct. It would be much better for those in Mr U's position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate. But the question before us is whether the judge was right to stay the proceedings as an abuse of process. Our conclusion is that he was not." (para.39.)

 Those involved in “paedophile vigilante” activities will no doubt feel vindicated by this decision. For Defence lawyers TL does not quite spell the death knell for applications that a case should be stayed where paedophile hunters are involved. Cases where a stay will be justified will require proof of “seriously improper conduct’ so as to bring the administration of justice into disrepute.” They will be few and far between.

 [1] In the case of Wilson (CA, 9 May 1996) the same was said in a case concerning the activities of private informants.