Police informant entrapment

R v THOMAS, BURKE, ROBERTS AND SCOTT case note

Police informer entrapment continues to feature in criminal litigation, as illustrated in the unreported Trinidad High Court of Justice Criminal division case of The State v Alana Thomas, Tracey Burke, Dexter Roberts and Christopher Charles Scott (CR 34/2017 CR-HC-POS-IND-315-2021-1) before the Honourable Madame Justice Nalini Singh.

Ruling dated 8th November 2023.

?Factual background

1. The background to the case involved the accused persons claim that they were ensnared into participating in a drug deal because of the actions of a private citizen who acted as an undercover agent of the police.

2. The State’s case was that in June 2012, Searl Le Platte paid two social visits to the home of Tracy Burke and discussed taking drugs to Jamaica as a mule by swallowing pellets of cocaine. However, no definitive arrangements were made to do anything.

3.Searl Le Platte then went to the Organized Crime Narcotics and Firearms Bureau (OCNFB), where he met Officer Biggart and the two had a conversation. Crucially, the contents of this conversation were never adduced in evidence at the Magistrates’ Court and Searl Le Platte is now deceased.

4. Following the meeting Officer Biggart retrieved Searl Le Platte’s passport and gave it to him. Searl Le Platte gave the passport to Alana Thomas so she could purchase his ticket and she in turn promised to communicate further with him. A week later Searl Le Platte met Christopher Scott and Dexter Roberts agreeing that Searl le Platte would transport drugs to Jamaica by ingesting it for $1, 000 US dollars.

5. In July 2012, Alana Thomas brought $200 for Searl Le Platte and a dummy pellet for him to practise swallowing. On the 16th July 2012, Searl Le Platte received a call from Christopher Scott who told him he would be flying the next day.

6.On 17th July 2012, Christopher Scott and Dexter Roberts conveyed Searl Le Platte to a guest house in St. Joseph. Christopher Scott returned to the guest house and gave Searl Le Platte a bag of about 70 pellets of cocaine. Searl Le Platte pretended that he swallowed the pellets. Instead, he concealed most of the pellets in his knapsack.

7.When Dexter Roberts came to the guest house on the 17th July 2012 to convey Searl Le Platte to the Airport, Searl Le Platte handed him the remaining 10 pellets on the pretext that he could only ingest about 60 of them. Dexter Roberts took it intending to hand it over to Christopher Scott. On the way to the airport, Dexter Roberts gave Searl Le Platte $2000 TTD from Christopher Scott. Once he was in the airport, Searl Le Platte called Officer Biggart. Shortly after, Searl Le Platte was escorted to the second floor of the airport by the police who took possession of the knapsack containing the pellets of cocaine.

8.All four (Thomas, Burke, Roberts and Scott) accused were indicted for conspiracy to traffic cocaine.

Stay application

9.The accused submitted that they had become enmeshed in a net cast by a private citizen acting as an undercover agent of the police. They were entrapped into committing the offence with which they are indicted and, in order to protect the integrity of the criminal justice system, the indictment should be stayed as a category two abuse of process.

10.In determining whether to stay criminal proceedings in the second category of case, Honourable Madame Justice Nalini Singh took into account the particular circumstances of the case and, in exercising a broad discretion, struck a balance between the public interest in ensuring that those accused of serious crimes are prosecuted and the competing public interest in ensuring that the misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.

11.In striking a balance between the two competing public interest policies the approach adopted in R v. Ameer [1977] Crim. L.R. 104 and R v. Smurthwaite & Gill [1994] 98 Cr App R 437 was followed by the Honourable Madame Justice Nalini Singh and questions determined :

1. Do the principles relating to entrapment apply to the actions of a private citizen?
2. Was a crime of the same kind as that charged, already afoot at the time of the intervention of the police agent?
3. Had the accused committed an offence of a class which they would not have committed but for the encouragement of the police agent?
4. Had the accused a propensity to engage in the crime charged?
5. Did the police agent play a minor part in the criminal activity?
6. Is the Court certain, in retrospect of the informer’s reliability?
7. Was the informer’s participation approved at a senior police level?
8. Is the offence so grave that the public interest would justify the use of entrapment techniques?

The Law applied

i. Do the principles relating to entrapment apply to the actions of a private citizen?

12. The relevant principles relating to entrapment by the state through its agents as set out in R v. Looseley (AG Reference No 3 of 2000) [2001] UKHL 53 were considered. Lord Nicholls made the position clear stating:

“It is simply not acceptable that the state, through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. “

Lord Nicholls indicated that the overall consideration was always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. The difference being between the permissible offering of “opportunities” to commit crime, and “instigating”, “inciting” or “causing” crime, and that the unacceptability of the latter was, as Lord Nicholls indicated, “obvious.”

13. Returning to the facts of ?Thomas and others, the offence of conspiracy to traffic in a dangerous drug was not yet committed by the accused at the time Searl Le Platte initially spoke to Officer Biggart at OCNFB. The agreement to traffic cocaine into Jamaica which was later arrived at between Searl Le Platte and the accused, only came after Searl Le Platte got the police involved. It follows that by the time there was eventually consensus ad idem between Searl le Platte and the accused to traffic cocaine to Jamaica, Searl Le Platte would have been acting as an agent of the state and so his actions would have been attributable to the state itself. Therefore whatever he did to “entrap” the accused into forming an agreement to traffic cocaine into Jamaica, was done with the authority of the state. This means that the principles set out in R v. Looseley (AG Reference No 3 of 2000) apply to the instant matter.

ii. Was a crime of the same kind as that charged, already afoot at the time of the intervention of the police agent?

14. Assessing whether a similar crime was already in progress when Searle Le Platte, acting as a police agent intervened, required a thorough examination of the specific circumstances of this case. ?

15.The accused have been indicted for conspiracy to traffic in a dangerous drug. Right until the moment Searl Le Platte left Tracy Burke’s home to have his first meeting with Officer Biggart of OCNFB, there is no evidence of a conspiracy between Searl Le Platte and the accused to pursue the offence of trafficking a dangerous drug. On the evidence of Searle Le Platt, he and the accused merely shared assumptions about future events. At its highest, there was a discussion and disclosure of expectations and beliefs about how the future may unfold. There was as yet, no formation of any agreement to work towards committing the principal offence.

16. At the end of the first two conversations between Searl Le Platte and the accused, there was an expectation, and a high one at that, that Searl Le Platte might transport drugs to Jamaica by ingesting it -if he ever regained possession of his passport. But the expectation alone that Searl Le Platte might transport drugs to Jamaica if he ever retrieved his passport, cannot suffice as an agreement. It cannot be said that these initial exchanges constituted the agreement by Searl Le Platte to enter into some joint venture with the accused to traffic dangerous drugs to Jamaica because on the evidence of Searl Le Platte himself, he was still undecided.

17. It could not be said with any degree of force that any crime of any kind was already afoot at the time of the intervention of Searl Le Platte in his capacity as a police agent.

iii. Had the accused committed an offence of a class which they would not have committed but for the encouragement of the police agent?

18. It is wholly wrong to send police agents to commit offences which would never have been committed but for the encouragement of that police agent. In R v. Birtles (Frank Alexander) [1969] 1 WLR 1047 Lord Parker CJ observed :

“it was vitally important to ensure so far as possible that the informer does not create an offence, that is to say, incite others to commit an offence which those others would not otherwise have committed. It is one thing for the police to make use of information concerning an offence that is already laid on. In such a case the police are clearly entitled, indeed it is their duty, to mitigate the consequences of the proposed offence, for example, to protect the proposed victim, and to that end it may be perfectly proper for them to encourage the informer to take part in the offence or indeed for a police officer himself to do so. But it is quite another thing, and something of which this court thoroughly disapproves, to use an informer to encourage another to commit an offence or indeed an offence of a more serious character, which he would not otherwise commit, still more so if the police themselves take part in carrying it out.”

19. After Searl Le Platte first went to see Officer Biggart at OCNFB, Searl Le Platte by his words and conduct thereafter, including the production of his passport, started a chain of events which eventually culminated in the accused either expressly or impliedly incriminating themselves. They were tricked into doing so.

20.This is because after Searl Le Platte was given his passport by Officer Biggart, within a matter of days he went to Tracy Burke’s home. There he met Tracy Burke and Alana Thomas and he handed over his passport to Alana Thomas prompting Alana Thomas to “contact other people” and begin the process of organizing the trip “in terms of purchasing the ticket.”

21. The handing over of the passport is also what caused Alana Thomas to arrange for Christopher Scott and Dexter Roberts to then meet with Searl Le Platte outside Queens Hall so that the issue of remuneration could be settled.

22. Another event which was put in motion after Searl Le Platte handed over his passport was that Alana Thomas then had to go into the travel agency to book a flight for Searl Le Platte. More pertinently, if Searl Le Platte did not hand over his passport, the accused would not have given him the 70 pellets of cocaine so he could transport it into Jamaica.

23. Based on Searl Le Platte’s own account of the events, it is clear that he was the one who incited everything. The offence of conspiracy was never committed by the time Searl Le Platte started to act as an agent of the police. The chain of events which culminated in the commission of the offence for which the accused have been indicted, started after Searl Le Platte’s first visit to Officer Biggart. Stated differently, Searl Le Platte made the accused do what they did. But for the actions of Searl Le Platte after he first saw Officer Biggart and subsequently retrieved his passport from the officer, it cannot be said that the accused were doing exactly what they intended to do all along. If Searl Le Platte acting as a police agent had never held himself out to be willing to be a drug mule, the accused would not have conspired to make it happen.

iv. Had the accused a propensity to engage in the crime charged?

24. The court was informed that three of the accused are persons of good character so they do not have the propensity to engage in the crime charged.

v. Did the police agent play a minor part in the criminal activity?

25. When Searl Le Platte went to Officer Biggart that first time, the police had reasonable grounds to suspect that trans-border narcotics trafficking might be committed by the accused. There is no evidence that the police did any surveillance on the accused in the matter nor is there any evidence that they conducted any investigations whatsoever into what Searl Le Platte said he told them. This put Searl Le Platte directly in the position of not just evidence gatherer but principal actor. In so doing, he took the lead role and committed the principal crime itself in the process of inducing the accused to commit the offence as well. His was not a role where he had been scrupulous to avoid encouraging the accused in the proposed trans-border narcotics trafficking plan. Against this background it cannot be said that the Searl Le Platte played a minor role in the criminal activity in this case.

vi. Is the Court certain, in retrospect of the informer’s reliability?

26. There was limited evidence from Searl Le Platte about his interaction with Officer Biggart. So the Court was left with no way of satisfying itself that Officer Biggart or any of the other officers who were present at that initial meeting with Searl Le Platte, did not engage in any forceful or persistent overtures. This was troubling to the court because Searl Le Platte was a man who had just gotten out of custody for trafficking, and for whom “things was just really hard”. These were potent vulnerabilities which were already at play and could have been easily exploited. Added to this, Searl Le Platte has a previous conviction related to narcotics.

27. Additionally, Searl Le Platte was not given an immunity in the matter. Without the protection of an immunity the threat of prosecution would have been hanging over Searl Le Platte’s head which further tainted his credibility as a witness. In all of these circumstances, the Court was hard-pressed to consider Searl Le Platte a trustworthy witness.

vii. Was the informer’s participation approved at senior police level, as required by the Home Office’s Guidelines?

28. Although there are no Home Office Guidelines in Trinidad, there is no evidence that the activities of the police in this case were sanctioned by the Commissioner of Police or the Director of Public Prosecutions. Nor is there any evidence that the police officers in this case acted under continued supervision and directions. Without this level of authorization there is no way to rule out the possibility that this is not a case where there was an ulterior motive on the part of the police, at play here. Similarly, it cannot be ruled out that the officers did not exploit Searl Le Platte who would have been particularly vulnerable to unfair pressure. Although this does not mean that the case should be automatically stayed, lack of evidence of authorization and or supervision is another factor that feed into the entrapment construct.

viii. Is the offence so grave that the public interest would justify the use of entrapment techniques?

29.? A Court cannot condone or be seen to rubber stamp behaviour which transcends what society perceives to be acceptable on the part of the State. The issuance of the stay obviously benefits the accused but the Court is primarily concerned with a larger issue: which is the maintenance of public confidence in the criminal justice system. The investigation and prosecution of a narcotics offence does not trump this.

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Indictment stayed

30. The offence charged had in substance been artificially created by the misconduct of those whose duty it is to uphold the law. The Privy Council in the case of Warren and others v. Attorney General for Jersey [2011] 3 WLR 464 noted that given the infinite variety of instances in which such an issue might arise, rigid classifications as to the circumstances in which a stay might be ordered, are inappropriate. Having said as much however, Lord Dyson JSC nevertheless went on to observe that in striking that balance between ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute, the usual approach of the Privy Council in entrapment cases, in particular, is to exercise that balance in favour of granting a stay. This is what is stated at paragraph 26:

“The Board recognises that, at any rate in abduction and entrapment cases, the court will generally conclude that the balance favours a stay. But rigid classifications are undesirable. It is clear from R v Latif and Mullen’s case that the balance must always be struck between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.”

31.Having given careful consideration to the matters set out above Honourable Madame Justice Nalini Singh found constrained to conclude that the balance favoured a stay:

It is to be regarded as repugnant to the common good and to the rule of law that the police using a private citizen, can manufacture a crime and then use the Court to obtain a conviction in respect of what is, in effect, of their own creation. My order is that the indictment against all four accused is accordingly stayed.

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Commentary

32. The case is a good illustration of the importance that courts attach to police supervision of informants and the need to keep records of state interaction with informants so as not to create state generated crime.

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Colin Wells

25 Bedford Row London

https://global.oup.com/academic/product/abuse-of-process-9780192859945?cc=gb&lang=en&

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January 2024.

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