Entrapment

Entrapment occurs when a law enforcement officer or state agent tricks, persuades, or defrauds someone into committing a crime they would not have otherwise been likely or willing to commit. Under U.S. law, it is specifically described as an officer conceiving and planning an offense, then procuring its commission from a person who would not have done it without that officer’s trickery, persuasion, or fraud. Because such police conduct is widely discouraged, many legal systems allow it as a defense against criminal charges. Sting operations—where officers use deception to catch people already committing crimes—often raise entrapment concerns. Depending on the jurisdiction, the prosecution may have to prove beyond a reasonable doubt that no entrapment occurred, or the defendant may need to prove entrapment as an affirmative defense. In journalism and whistle-blowing, entrapment refers to deceptive, trust-breaking tactics used to trick someone into committing a legal or moral violation.

The word “entrapment” comes from the verb “to entrap,” meaning to catch in a trap. It was first used in this legal sense in 1899 in the U.S. Court of Appeals for the Tenth Circuit case *People v. Braisted*. Noah Webster’s 1828 *American Dictionary of the English Language* defines “entrap” as:

In Canada, the Supreme Court developed the entrapment doctrine through three major rulings: *R. v. Amato*, *R. v. Mack*, and *R. v. Barnes*. Canadian law recognizes two forms of entrapment. The first is random virtue testing, which happens when police offer someone an opportunity to commit a crime without reasonable suspicion that the person or location is linked to the criminal activity under investigation. Even with such suspicion, police may only provide an opportunity to commit the offense. The second form is inducement of an offense, which occurs when police go beyond offering an opportunity and actually persuade the person to commit the crime. Courts consider factors like the type of crime, whether an average person would have been induced, the persistence and number of police attempts, the kind of inducement used (fraud, deceit, reward, etc.), and any express or implied threats. Entrapment is only considered after a finding of guilt. If the court decides the accused was entrapped, it enters a judicial stay of proceedings, which is similar to an acquittal. In 2013, a British Columbia couple was found guilty of attempting to blow up the British Columbia Parliament Buildings, but in 2016 the verdict was overturned because the Royal Canadian Mounted Police had entrapped them. This was the first successful entrapment argument in a terrorism case; three earlier attempts had failed.

In Germany, it is generally forbidden to induce or persuade someone to commit or attempt a crime. However, the German Federal Court of Justice has ruled that entrapment by undercover police agents does not automatically stay a case. If undercover agents were used without proper justification, punishment for the offense may be reduced. For people not initially under suspicion and unlikely to commit a certain crime, a 1999 decision held that entrapment violates the right to a fair trial, so punishment may be reduced.

In England and Wales, the main authority on entrapment is the House of Lords case *R v Loosely* (2001), which also applies in Scotland. A stay is granted if state conduct was so seriously improper that it brought the administration of justice into disrepute. A useful guide is whether the police did more than present the defendant with an unexceptional opportunity to commit a crime. Lords Hoffman and Hutton listed factors to consider: whether police acted in good faith; whether they had good reason to suspect the accused; whether crime was particularly prevalent in the area; whether proactive techniques were necessary due to the secrecy or difficulty of detection; the defendant’s circumstances and vulnerability; and the nature of the offense. Test purchases (*DPP v Marshall*) and posing as passengers to catch unlicensed taxi drivers (*Nottingham City Council v Amin*) are generally acceptable. Historically, entrapment was common in the 18th and 19th centuries, used frequently by the Bank of England and Royal Mint to catch currency criminals during the Restriction Period of 1797–1820. Plainclothes policemen also used entrapment to prosecute gay men, even after the Sexual Offences Act 1967 exempted consensual gay sex in private from prosecution. In Scotland, the main authority is *Brown v HMA* (2002), which stated that entrapment occurs when law enforcement officials cause an offense that would not have happened without their involvement.