Entrapment

Entrapment happens when a law enforcement officer or someone working for the state tricks or pressures a person into committing a crime they probably wouldn’t have committed otherwise. Under U.S. law, it’s described as an officer or agent coming up with and planning an offense, then getting someone to carry it out through deception, persuasion, or fraud—someone who wouldn’t have done it without that push. Because this kind of police behavior is generally frowned upon, many legal systems allow it as a defense against criminal charges. Sting operations, where officers use deception to catch people in the act of committing crimes, often raise questions about whether entrapment has occurred. Depending on the jurisdiction, the prosecution might have to prove beyond a reasonable doubt that the defendant wasn’t entrapped, or the defendant might need to prove they were entrapped as an affirmative defense. In journalism and whistle-blowing, entrapment refers to using deceptive, trust-breaking tactics to trick someone into breaking a law or moral rule.

**Etymology and usage** The word comes from the verb “to entrap,” meaning to catch in a trap. It was first used in this legal sense in 1899 in a U.S. Court of Appeals case, *People v. Braisted*. Noah Webster’s 1828 *American Dictionary of the English Language* defined “entrap” as catching someone as if in a trap, usually in a figurative way—by tricks, getting them into trouble, or tangling them in contradictions, making escape hard. It noted people can be entrapped by evil schemes or even their own words.

**Canada** Canada’s Supreme Court laid out the doctrine of entrapment in three key rulings: *R. v. Amato* (1982), *R. v. Mack* (1988), and *R. v. Barnes* (1991). Canadian law recognizes two forms of entrapment. The first is random virtue testing: when police offer someone a chance to commit a crime without having reasonable suspicion that the person or their location is linked to the criminal activity under investigation. Even if police have that suspicion, they can only provide an opportunity—not more. The second is inducement of an offense: when police go beyond offering an opportunity and actually push someone into committing a crime. Courts look at factors like the type of crime, whether an average person would have been induced, how persistent the police were, what kind of inducement was used (fraud, deceit, rewards, threats), and whether threats were implied or explicit. The entrapment question is only considered after a guilty verdict. If the court finds the accused was entrapped, it enters a judicial stay of proceedings, which is similar to an acquittal.

**History** In 2013, a British Columbia couple was found guilty of trying to blow up the British Columbia Parliament Buildings. In 2016, that verdict was overturned because the Royal Canadian Mounted Police had entrapped them into the plot. This was the first time entrapment was successfully argued in a terrorism case; three earlier attempts had failed.

**Germany** German law generally forbids inducing or persuading someone to commit a crime or attempt one. However, the German Federal Court of Justice has ruled that entrapment by undercover police agents doesn’t automatically halt a case. If undercover agents were used without proper justification, the punishment for the offense may be reduced. For people who weren’t initially under suspicion and were unlikely to commit a certain crime, a 1999 decision said that entrapping them violates the right to a fair trial, so the punishment can be reduced.

**United Kingdom**

**England and Wales** The main authority on entrapment in England and Wales—also applied in Scotland—is the House of Lords decision in *R v. Loosely* (2001). A case is stayed if the state’s conduct was so seriously improper that it brought the administration of justice into disrepute. A useful guide is whether the police did more than just present the defendant with an ordinary opportunity to commit a crime. In *Loosely*, Lords Hoffman and Hutton listed factors to consider: whether the police acted in good faith; whether they had good reason to suspect the accused of criminal activity; whether they suspected crime was especially common in the area (from *Williams v. DPP*); whether proactive methods were needed due to the secrecy or difficulty of detecting the crime; the defendant’s circumstances and vulnerability; and the nature of the offense. Courts have generally allowed police to do test purchases (as in *DPP v. Marshall*) or pose as passengers to catch unlicensed taxi drivers (as in *Nottingham City Council v. Amin*). 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.