Entrapment: The defence in mitigation

Entrapment is an action by law enforcers to induce a person into committing a crime to prosecute them for that crime.

It can be loosely defined as the act of tricking someone to commit a crime. For example, where it is criminal to procure the services of a sex worker, the offender can plead entrapment as a defence to a charge of procuring the services of a commercial sex worker if he was induced to do that. For example, he can plead that he was set up to procure those services and that he would not have ordinarily procured those services.It is like the story of the fall of man. When God visited the garden of Eden on that fateful evening and called out to Adam, this is what transpired:

“9. And the LORD God called unto Adam, and said unto him, Where art thou?
10. And he said, I heard thy voice in the garden, and I was afraid, because I was naked; and I hid myself.
11. And he said, who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?
12. And the man said, The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.
13. And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat”
 - Genesis 3

Entrapment is inducement. Adam said the woman induced him. Eve said the serpent induced her. Entrapment is a legal excuse.

In law, which was mostly laid out in R V Loosely [2001] UKHL 53, entrapment can only be available to an accused if “police did more than present the defendant with an unexceptional opportunity to commit a crime”. As such, it is only available as a defence in mitigation when a government law enforcement officer is the one who induced the accused. This defence in mitigation is not available to persons who were induced by a private person to commit a crime. Also, the defence is not available to a person who was already planning or willing to commit the crime. For example, if Agrace sets out to buy cocaine and buys it from an undercover police man selling cocaine, then Agrace cannot plead entrapment. Why? Because she was going to buy cocaine, anyway.

The rationale of the defence of entrapment is to bring law enforcers to order. They should not engage in reprehensible activities by inducing ordinary citizens to commit crimes. It is considered immoral for agents of the state to lure citizens into committing crimes and then seek to prosecute them.

In adjudicating upon cases where the accused pleads entrapment, the court must be convinced that the accused did not have a previous intent to commit the crime. The accused behaviour is also scrutinised to establish that he or she does not have a criminal record, relevant to crime with which he is currently charged.
So, to plead entrapment, one must prove that the law enforcer planted the idea of committing the crime into his mind, that the idea was not there before.

Sometimes, “entrapment” is done by undercover journalists. This of course does not constitute entrapment because it is done by private persons. But common law on this subject also seems unclear. In 2010, when delivering judgment in the case of Edward terry (father of John Terry, popular England Footballer), where he was accused of possession and supply of narcotics after he was secretly filmed facilitating a supply of a small amount of cocaine to an undercover agent, Justice Mitchell while convicting him said that, “it is a very, very clear case of entrapment solely to create a newspaper story”.

But isn’t it unfair for the law to protect citizens who commit crimes at the temptation by the state but does not avail the same protection to citizens who commit crimes at the temptation by their fellow ordinary citizens? What if the temptation from the ordinary citizen was way higher than would be deemed appropriate even by law enforcers? After all, even when the “entrapper” is a law enforcer, the accused never knows that he is dealing with a law enforcer, but mostly goes along with the impression that the said entrapper is an ordinary citizen. So, why should it be entrapment if it is by a law enforcer, and not entrapment if it is by a private citizen?

But then, the state can always argue that where entrapment is by a private citizen, they only presented evidence as was gathered from a third party, and that they only got involved after commission of the crime, after entrapment has taken place.

Unlike American law, English Law (which we mostly use in East Africa) does not have entrapment as a defence. It is merely a mitigating factor at sentencing. This was so stated in the English case of R V Sang [1980] AC 402.

To note is that the Evidence Act clearly states that evidence which is unlawfully procured cannot be used against the accused, and therefore, it can be rightly argued that evidence got through entrapment is inadmissible.

So, what is most important for a defence in mitigation of entrapment to work is that the conduct of the law enforcer lured the accused to commit a crime they would not have committed ordinarily.
The cases of entrapment in Kenya are rarely publicised. Most accused persons do not even know that entrapment can be used in mitigation of their sentence, or even to quash the proceedings against them.

Our Lord Jesus is indeed Lord. When He taught his disciples how to pray, He told them to say, “Lead us not into temptation…”


This article appears in our digital law newsletter, The Deuteronomy Vol 9, Issue 1 of September 1st, 2017
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2 thoughts on “Entrapment: The defence in mitigation

  1. Great read. Entrapment has been the order of things in a number of cases involving EACC agents. They target junior police officers yet they do nothing about the grabbers of our Billions. It is certainly an interesting perspective for criminal litigants.

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