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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Moon, R. v [2004] EWCA Crim 2872 (10 November 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/2872.html Cite as: [2004] EWCA Crim 2872

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		10 November 2004

1. LORD JUSTICE RIX: This appeal raises the question whether the prosecution of the appellant, a heroin addict who was persuaded by an undercover woman police officer to supply her with a small amount of heroin, should have been stayed on the ground of abuse of process. It is therefore concerned with the issue of entrapment and the limitations which the law places on the State's participation in crime in its efforts to combat crime. The leading modern case on this subject is R v Loosely: Attorney-General's Reference No 3 of 2000 [2001] UKHL 53; [2001] 1 WLR 2060; [2002] 1 Cr App R 29, to which we will make reference below.
2. The appeal is that of Diana Moon who, on 25th October 2000, when she was 30, at Cambridge bus station, or in its environment, supplied a small amount of heroin which she had obtained from a dealer and passed on to an undercover police officer known only as Jackie. In circumstances which we will detail below, the Crown accepted that the appellant was in this case not a runner for another dealer but only an addict. The Crown also accepted, and does so again on this appeal, that there was no evidence that the appellant was other than an addict; no evidence that either on this occasion (for which she was prosecuted) or any other occasion, she had acted as a dealer or as a runner for a dealer.
3. Following the undercover operation on 25th October 2000, the appellant's home was searched in January 2001. A small amount of heroin was found in her kitchen. It was accepted that that was for her personal use and it led to the second count on the indictment, a count of possession. To that the appellant pleaded guilty at the outset. She was also charged with possession with intent to supply (count 1), relating to the occasion of supply at the bus station on 25th October 2000. To that she pleaded not guilty.
4. It was over two years later, in April 2000 (that delay being caused by her breach of bail, in that she went to Ireland to rehabilitate herself and only subsequently contacted her solicitors and surrendered herself to the police) that she came up for trial at the Crown Court at Luton before Mr Recorder Clover.
5. On 4th April 2003 a voir dire was held with a double purpose: principally to determine, through the Recorder's ruling on the question of entrapment and abuse of process, whether or not the prosecution on count 1 should be stayed; but secondly, and contemporaneously, to hold a Newton hearing on the circumstances of the supply. Was it is as a dealer's runner (ie part of a dealing process), or was it (as the appellant had said at her police interview in January 2001) as an addict who had taken pity on what she had taken to be Jackie's distressed condition as another addict in withdrawal? The voir dire was held because, if the stay for abuse of process application went against her, she would change her plea to one of guilty and go straight to sentence, as indeed happened. It is therefore common ground that if the Recorder erred in rejecting the abuse of process application, then the conviction was unsafe and the appeal should be allowed.
6. At the voir dire the appellant and Jackie gave evidence - the latter from behind a screen. There was no other evidence from police witnesses. One of the issues explored through that evidence at the voir dire was whether the undercover operation had been properly authorised under the police Code of Practice. In the event, the hearing was adjourned to 15th May 2003 for further disclosure by the Crown on that issue. As a result of the adjournment, the provision of further disclosure and a request for PII protection from still further disclosure on the part of the Crown, the Crown ultimately proceeded on the basis that there had been no authorisation at all under the relevant 2000 Code of Practice concerning undercover operations which was in force at the relevant time of October 2000. The Crown did, however, rely on certain circumstances relating to the briefing of Jackie and the handing to her of written instructions and the secret tape recording equipment which she carried. All of this, the Crown submitted, amounted to appropriate and sufficient supervision. However, the supervising detective inspector did not give evidence at the voir dire.
7. At the hearing of 4th April 2003, prior to the adjournment, it was agreed in the course of submissions by counsel that the Newton hearing constituent of the voir dire should be resolved in favour of the appellant. That was by virtue of the following discussion, which begins with Mr Duffy's submission. He appears at this appeal, as he did below, on behalf of the appellant:

"MR DUFFY: Your Honour, the other matter I should have dealt with is that it is also plain that the concurrent Newton hearing has been dispensed with by the fact that the Crown never put to the defendant that she was anything other than an addict herself. Jackie plainly tried to say that she was moving between various people, and acting in some way as some sort of runner, but that was never put to the defendant, and plainly it is not an argument that the Crown could maintain. If they do not choose to put the basis of their case to the defendant when she gives evidence, and they have a full opportunity to do so, then they cannot then maintain that this defendant was acting as a runner. Plainly, she was not. But, in any event, they have had the opportunity to put their case to her, and they did not take it.

RECORDER CLOVER: I think that is probably right. I will hear what is said, but, on the face of it, I think that is probably right. Thank you very much.

MR KINGERLEY [who appeared, below as he does on this appeal, for the Crown]: Your Honour, on the defendant's own evidence - dealing with that final point first - of course, she bought something from somebody else and then sold it on. That is her evidence. Your Honour, it is a matter for you as to how your Honour looks upon that.

Dealing, if I may, your Honour, of course, with the substantive application---

RECORDER CLOVER: The Crown is not putting its case against this defendant on the basis that she was a runner for other people?

MR KINGERLEY: Your Honour, there is no evidence to suggest that she was, as far as I could see on the papers. I accept --

RECORDER CLOVER: I am only asking whether it is correct - that the Crown is not putting its case on that -- You do not need to go on and explain to me whether there is, or is not. I just want to know how you are putting your case.

MR KINGERLEY: No, of course, your Honour. That must be right."

That was during submissions following the taking of the evidence.

8. As for that evidence, that given by the appellant at the voir dire was to the following effect. She said that she had been approached by Jackie, who asked if she could buy some drugs from her. The appellant was reluctant to become involved in the sale of drugs and initially refused. However, Jackie pleaded that she was desperate, and eventually, after she had been approached five times, the appellant took pity and agreed to supply her with some heroin for £10. It had not been her intention to help the officer, but she felt sorry for her, having heard her sad story about separating from her boyfriend and having been through similar experiences herself. Together with another friend the appellant and Jackie got into the appellant's own car and drove a short distance, before she handed the bag of heroin to the officer for £10. She felt pressure to supply these drugs to the officer and would not have sold the drugs if the officer had not been so persistent in her requests.
9. In the course of her evidence she also addressed her previous record and her interview of January 2001. So far as her record was concerned (the precise details of which are not before us), suffice it to say that she had had one conviction some time before for the simple possession of cannabis and no other drug-related offences. So far as her interview was concerned, she said that that was a truthful account, and for relevant purposes we can confine our reference to it to the following passages. Almost immediately after the beginning of the interview the appellant said this:

"Yeah, I was approached about four times by a girl I'd not seen before, not seen in that area and she kept telling me that she was clucking ..."

We interpose to say that that is an expression referring to the unhappy physical consequences of being in a state of withdrawal.

"... and I told her I didn't sell drugs and I couldn't help her and she asked me again and eventually I went and saw somebody else that I knew who does sell drugs and I got her a £10 bag of heroin and she came up to my car with me in Victoria, in King Street and I drove round the corner to Victoria Avenue. I gave it to her.

OFFICER 283: Okay, for 10 quid?

THE APPELLANT: Yeah, that I'd just given to him for it.

OFFICER 283: Yeah, so you didn't make a profit out of it?

THE APPELLANT: No.

OFFICER 283: You were just passing it on really, is that about the size of it?

THE APPELLANT: Well yeah, I mean she kept telling me she was desperate so.

OFFICER 283: Yeah, yeah, I see the principle of it. ...

THE APPELLANT: The only reason personally I did it was because I'm a heroin addict myself and I know what it's like if you are ill from not having any drugs.

OFFICER 283: Well I understand the principle of it and I thank you for being quite straightforward about it.

THE APPELLANT: No point in lying, is there?"

Then at the very end of the interview there was this exchange between the two police officers who were there:

"OFFICER 1133: I don't know if there's anything else, is there?

OFFICER 283: No, I, no, Diane's been absolutely dead straightforward about it, ain't she?

OFFICER 1133. Yeah."

10. The appellant also gave evidence at the voir dire that on the walk to the car she had told Jackie that she was never to approach her again for any more drugs. That evidence, however, was not mentioned in the Recorder's ruling, even though in its essence it was supported by Jackie's evidence.
11. We would add that, as was also adduced by the appellant in evidence at the voir dire, at the time of her interview in January 2003 she had had no legal advice and was not represented by a solicitor at that interview. Nor had she heard of the concepts of entrapment or agent provocateur.
12. The evidence given by Jackie, however, was to the following effect. She had worked as a police constable for seven years and as a detective constable for two-and-a-half years. She acted as a test purchaser, her role being to buy drugs from persons at the bus depot in Cambridge. This was considered to be a problem area by the police. On 25th October 2000 she had gone to the bus depot, having been briefed by a detective inspector at the police station as to how she should act. She produced the written instructions to test purchase officers, which was provided to her, and said that she had been instructed to follow the six-step procedure set out in that document. We will make further reference to it below. She was equipped with a tape recorder to provide a record of any conversation during the test purchase operation, and there was a transcript of the tape recording.
13. At the bus depot she observed the actions of the appellant within a group, which led her to suspect that she was involved in dealing in drugs. Additionally the appellant was seen with cling-film sticking out from her pocket, and this caused Jackie to suspect that she was still in possession of drugs. She caught the appellant's eye and asked if she was dealing, but received no reply. She made a further request, and it seemed to her as if the appellant was about to supply drugs to her when another girl intervened and warned her to be careful, as she (Jackie) was not known. She continued to observe the appellant and made enquiries within the group about who might sell her some drugs. A male told her that the appellant had drugs to sell. The appellant then returned, stating she would deal to her on behalf of another man who did not trust her, that is to say, Jackie. Only at that stage, after the appellant had agreed to supply the drugs, was there any conversation about her supposed personal details, including the bad luck story about falling on difficult times and separating from her boyfriend. The appellant did then say that she was only making the supply because she, Jackie, looked desperate and it was on behalf of someone else. Thereafter they went to the appellant's car. Thereafter the evidence of Jackie and the appellant essentially concurred.
14. In cross-examination she said that, as a test purchaser, her role had been fully explained to her and it was very clear at the time. She insisted that she did have reasonable grounds to believe the appellant was supplying drugs to people in the group. It was her insistent evidence that the appellant was predisposed to selling drugs. She based that view on the circumstances that she had seen the appellant passing something to another man, called Sandy, and albeit she did not know what that was, she said that she knew Sandy as a drug user and inferred (though she denied that it was mere guesswork) that it was drugs that had been passed. She also referred to the cling-film in the appellant's pocket as being evidence to the same effect. She also relied on hearsay to the effect that people had told her that the appellant was dealing drugs. She was asked if she was prepared to countenance any possibility that she might be mistaken. She replied that she was definitely correct and that there was no chance of her being wrong about any of that.
15. She agreed that she had instigated the conversation about drugs and had made the first move by approaching the appellant, and that she had lied to the appellant about being a drug addict; but that, she said, was necessary when acting as a test purchaser for drugs. She said that she had not pressed the appellant to supply her, other than in the way that a typical addict who needed to satisfy a craving would have done, albeit she accepted that she was to a certain extent persistent. However, she said that she had only asked the appellant twice to supply her with heroin and the appellant had not been reluctant to do so.
16. Towards the end of her evidence she was pressed upon a subject which had been raised with her earlier on, and that was whether her activities had caused the appellant to sell drugs to her. The following passage appears in the transcript:

"Q. All right. Let us go back to neutral word you insist on using - 'cause'. You had to cause her to sell you drugs?

A. Yes, that's correct.

Q. Fine. So, you were causing her to do something which you have already told us she would not otherwise have done. That is right, is it not? You have already told us that in evidence.

A. To sell to me, yes.

Q. Yes. So you were creating a crime - the crime of supplying controlled drugs.

A. I suppose, yes.

Q. Not suppose, officer. That is what you were doing, was it not?

A. She was willing to sell, and I was willing to buy, yes.

...

Q. So, I ask you the question once more: you were creating a criminal offence by causing my client to supply you with heroin, were you not?

A. Yes.

Q. And you were causing her to commit a criminal offence, well knowing that she would then be ---- The whole idea was for her then to be prosecuted for it?

A. Yes, she would be prosecuted for it, yes.

...

Q. A crime that would, as far as you have already told us, not have been committed but for your causation. That is right, is it not?

A. Yes.

Q. Thank you. (After a pause): So, not to put too fine a point on it, officer, you were acting as an agent provocateur and you did entrap my client into committing a criminal offence, did you not?

A. No."

Well might Mr Duffy have paused before asking that final question; and he perhaps regretted asking it in the event.

17. The judge, in a lengthy and careful ruling, decided that the prosecution on count 1 should not be stayed. Although he was satisfied that the operation had not been properly authorised, nevertheless, having regard to the totality of the evidence, the operation was a bona fide one. The officer involved had received a briefing and relevant training. The operation was not speculative, as there were reasonable grounds to suspect that drug offences were being committed. Furthermore, where there were discrepancies between the evidence of the appellant and the officer, he found the officer to be truthful and the appellant to have carefully prepared her answers. It is clear from the detail of his reasons that he rejected the appellant's evidence, in part because he had been disconcerted by what he described as her fixed stare at him while giving evidence and in part because he viewed her as having coloured and tailored her evidence in the light of her appreciation of the legal issues involved. In particular, he concluded his ruling with this paragraph:

"The officer did not know the defendant previously; did not know that she was a drug addict. As I have said, I think more than once, I think I am satisfied that there was no improper motivation in the officer's two approaches to the defendant. The actions of the police, and of this particular officer on 25 October 2000, were proportionate, having regard to the seriousness of the crimes of drug trafficking which the police had reasonable grounds to suspect were being carried on in the vicinity of the bus station. There was, as I have said, no unfairness resulting to the defendant as a result of the way in which the operation was set up. If the authorisation procedure had been correctly followed, the officer would not have conducted herself in any way materially different from that in which in fact she conducted herself on 25 October 2000. I am satisfied that the conduct of the defendant - what she said; how she said it; and her actions in agreeing to supply, and in fact supplying, in return for payment, a quantity of heroin to the officer - were actions she would have taken if the authorisation procedure had been fully and correctly followed by the police in arranging for this test purchase operation. It was an operation carried out, as I find, under supervision, and it was not calculated to cause - nor did it cause - the defendant to do anything which she would not have done in response to a similar request from any one of the numerous customers in Cambridge, dependent upon heroin and requiring regular supplies of heroin to satisfy their craving."

18. Although the learned Recorder did not use the following expressions in concluding his ruling in those terms, he obviously had in mind, in those concluding words, the distinction made in Loosely between an undercover operation which causes a crime which would not otherwise have occurred, and one which merely afforded an opportunity for a crime which, if it was not committed with the undercover officer in question, would in due course have been committed with someone else.
19. It is clear, we would comment, from the concluding sentence of the Recorder's ruling that, contrary to the way in which the Crown viewed the status of the appellant as a mere addict, the Recorder, accepting the evidence of Jackie as he did, was regarding the appellant as a dealer or a runner for a dealer, or at any rate as someone who was prepared at any time to supply regular supplies of heroin to "any one of the numerous customers in Cambridge".
20. On this appeal there are, in essence, two grounds, although they have not been drafted in that way. The first ground - essentially a ground of law - was that the Recorder was wrong in his application of Loosely. The second ground - essentially a ground of fact - was that the judge was wrong in his findings to the extent of perversity in preferring the evidence of Jackie to that of the appellant. The single judge gave leave on the first ground. It was only the full court who gave leave on the second ground. It is plain from the full court's judgment on that occasion that it was concerned at the apparent and unexplained discrepancy between what the Crown accepted for the purposes of the result of the Newton hearing and the terms in which the Recorder had ultimately ruled on the abuse of process application.
21. Before we come to Loosely and counsel's submissions and our conclusions, we need to say something about the instructions which were given to Jackie, the Code of Practice which was in operation at the time, and the tape recorded transcript.
22. The instructions given to Jackie - a document which was disclosed and was in evidence - was a printed sheet headed "Instructions to Test Purchase Officers", which contained six paragraphs. The first two paragraphs set the tone for the instructions as a whole:

"(1) A test purchase officer must not act as an 'agent provocateur'. This means he must not incite or procure a person, or through that person anybody else, to commit an offence or an offence of a more serious character, which that person would not otherwise have committed.

(2) However, a test purchase officer is entitled to join a conspiracy which is already in being or an offence which is already 'laid on' or, for example, where a person has made an offer to supply goods, including drugs, which involves the commission of a criminal offence.

...

(5) Test purchase officers must obtain confirmation that the information they are acting on is accurate and reliable before becoming involved in operations."

At the end of paragraph 6 the instructions closed with this reminder:

"Invariably this means you enter a criminal conspiracy or become part of a pre-arranged criminal offence."

23. In essence those instructions appear to contemplate that, although the test purchase officer is entitled to join a conspiracy or to purchase goods where a person has made an offer to supply - an offence described colloquially as one which is "already 'laid on'" - nevertheless officers should go no further and should in any event act with caution and only after confirmation that the information they are acting on is accurate and reliable.
24. The Code of Practice, which was also considered in Loosely, is a much more thorough document. Of particular importance seeing that Jackie was in this case deployed, as the instructions given to her indicate, as a test purchaser, is paragraph 3 of the Code, which is headed "Deployment of Test Purchasers and Decoys". Paragraph 3.2 states that before an authorising officer may give an authorisation for the deployment of a test purchaser he has to be satisfied that the test purchase is required in support of an investigation into a criminal offence concerning the possession, supply or use of a commodity or service, and that reasonable grounds have been established prior to the deployment of the test purchaser to suspect that such a criminal offence has been committed; that the desired result of the test purchase cannot reasonably be achieved by other means, and that the risks of collateral intrusion have been properly considered. Paragraph 3.4 says that authorisations have to be given in writing by the authorising officer. Paragraph 3.6 goes on to say that in the case of test purchases such written authorisations may be given, in the case of the police, by a superintendent. Paragraph 3.7 says that such an authorisation should be preceded by an application to the authorising officer for an authorisation and that the application itself must be made in writing and should specify the matters set out below in paragraph 3.8. That paragraph makes it clear that such an application should specify the nature of the criminal offence concerned, together with the names and addresses, so far as is known, of the persons targeted and how the criteria at paragraph 3.2 have been satisfied. Paragraph 3.13 deals with records and states that a record should be maintained of the matters required at paragraphs 3.8 and 3.9 as appropriate of authorisations given, of the details of the results of a test purchase, the details of any person arrested as a result of the decoy operation, the outcome of reviews and the grounds for withdrawal of or refusal to renew authorisations. Finally, a note to paragraph 3 as a whole, note 3A, states:

"Test purchase should not be used as a speculative means of search for the assistance of a commodity or service where no other reasonable grounds exist to suspect that criminal offences have been or are being committed."

25. The transcribed tape recording which was in evidence before the Recorder turned out, unfortunately, to be inadequate. There were two sides of a tape, the first side for some 48 minutes and the second side of which ran for some 28 minutes. However, large parts of the transcript were, even at the stage of proceedings which was most relevant to the operation as they concerned this appellant, inaudible. In essence, in so far as there was any dispute between the appellant's and Jackie's evidence at the voir dire, the transcript is not in a position to resolve that dispute. It does, however, confirm that the initial approach was made by Jackie and that she was initially rebuffed, and even at a later stage was told to take her request to "them", that is to say other people in the vicinity.
26. We turn to Loosely. The first speech was given by Lord Nicholls of Birkenhead. We read from paragraph 1 which sets the scene:

"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. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen."

27. Lord Nicholls went on to refer in paragraph 3 to the need in certain cases for a degree of active involvement by the police, to test the incidents of crime. Examples he gave were the purchase of lager from an off-licence or the hailing of a taxi in an area not covered by its licence. Lord Nicholls then proceeded at paragraph 4 as follows:

"Thus, there are occasions when it is necessary for the police to resort to investigatory techniques in which the police themselves are the reporters and the witnesses of the commission of a crime. Sometimes the particular technique adopted is acceptable. Sometimes it is not. For even when the use of these investigatory techniques is justified, there are limits to what is acceptable. Take a case where an undercover policeman repeatedly badgers a vulnerable drug addict for a supply of drugs in return for excessive and ever increasing amounts of money. Eventually the addict yields to the importunity and pressure, and supplies drugs. He is then prosecuted for doing so. Plainly, this result would be objectionable. The crime committed by the addict could readily be characterised as artificial or state-created crime. In the absence of the police operation, the addict might well never have supplied drugs to anyone."

Subsequently under the heading "Entrapments and the limits of acceptable police conduct" Lord Nicholls went on to say this:

"19. As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catch-phrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif [1996] 1 WLR 104, 112. In a very broad sense of the word, such a prosecution would not be fair."

28. Lord Nicholls then went on to consider a number of criteria and their usefulness to a trial judge to assist him in distinguishing acceptable police operations from the unacceptable. Thus he considered, first of all, the question of a defendant's predisposition, pointing out that in other countries and in academic literature this had played an important role. However, Lord Nicholls was cautious to say that an existing predisposition of a defendant to act criminally would not necessarily make acceptable what would otherwise be unacceptable conduct:

"Predisposition does not negative misuse of State power."

29. Nothing said there by Lord Nicholls, however, would support a view that the absence of predisposition of a defendant to commit the crime in question is not relevant to the judge's consideration, and on behalf of the Crown Mr Kingerley accepts that that is so.
30. In looking for other criteria to identify limits to police action Lord Nicholls considered as relevant the nature of the offence - that is paragraph 26. Thus the use of proactive techniques is more appropriate in some circumstances than others. Next, at paragraph 27, he considered the reason fro the particular police operation. He said:

"It goes without saying that the police must act in good faith and not, for example, as part of a malicious vendetta against an individual or group of individuals. Having reasonable grounds for suspicion is one way good faith may be established, but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place, such as a particular public house. Sometimes random testing may be the only practicable way of policing a particular trading activity."

31. At paragraph 29 Lord Nicholls considered the factor of the defendant's criminal record. He said it was unlikely to be relevant unless linked to other factors grounding reasonable justification. As in the case of the matter of predisposition, however, we would regard the absence of a relevant criminal record as being a matter properly relevant to the judge's consideration.
32. At paragraph 25 Lord Nicholls had also said this:

"Ultimately the overall consideration is 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."

33. Lord Mackay of Clashfern agreed with the speeches of Lord Nicholls, Lord Hoffmann and Lord Hutton and said this at paragraph 34:

"... no two cases are likely to be exactly the same in all their circumstances. I would wish to stress that the ultimate question for the tribunal facing a case in which entrapment is alleged is whether, in the words of my noble and learned friend, Lord Nicholls of Birkenhead, the state through its agents had lured the accused into committing an act or acts forbidden by law for which the state is now seeking to prosecute him."

34. Lord Hoffmann, who also agreed with the speech of Lord Nicholls, at paragraph 50 under the heading "Causing and providing an opportunity", made the distinction to which we have already referred earlier in this judgment in these terms:

"Many cases place emphasis upon the question of whether the policeman can be said to have caused the commission of the offence, rather than merely providing an opportunity for the accused to commit it with a policeman rather than in secrecy with someone else. There is no doubt that this will usually be a most important factor deciding whether or not the police have overstepped the line between legitimate crime detection and unacceptable crime creation. But a note of caution must be sounded. First, as Lord Steyn said in Latif's case [1996] 1 WLR 104, 111, it is important but not necessarily decisive. Other factors, some of which I shall mention in a moment, may have to be taken into account as well. Secondly, a good deal will depend upon what is accepted as evidence that the accused would have committed the offence with someone else."

35. At paragraph 53 Lord Hoffmann went on to cite with approval the observations of Lord Bingham of Cornhill CJ from Nottingham City Council and Amin [2000] 1 Cr App R 426. Lord Bingham there formulated the test in the following terms at 431:

"On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."

36. Lord Hoffmann then went on to consider some of the other relevant factors to which he had previously referred as matters to be taken in account. The first which he considered was the matter of suspicion and supervision, and under that heading he considered in detail the Code of Practice to which we have already referred, and its importance. He would subsequently go on, when referring to the leading Strasbourg cases under the European Convention of Human Rights, to refer to the significance of such authorisation as protection against risks of extortion, corruption or abuse of power by the police (see paragraph 72).
37. At paragraph 66 he considered the nature of the offence, and at paragraphs 67 and 68 he considered the factor of predisposition. Of particular relevance for the present case are his concluding remarks on this topic at the end of paragraph 68, where he said:

"Nor is the fact that a person is a drug addict and therefore likely to know a supplier a sufficient ground in itself for tempting him to move altogether outside his usual way of life and act as intermediary in the supply of a substantial quantity of drugs. Such persons may be particularly vulnerable to unfair pressures of this kind. It may be possible to justify them for the purpose of securing the prosecution and conviction of the supplier but not the prosecution and conviction of the intermediary."

38. Lord Hoffmann then considered, under the heading "Active and passive" the extent of active persistence which an undercover officer may, depending upon the circumstances, undertake with or without crossing the line.
39. Lord Hutton, at paragraph 100, summed up the matter in the following way:

"Therefore the approach taken by the English cases is that it is necessary to balance the competing requirements that those who commit crimes should be convicted and punished and that there should not be an abuse of process which would constitute an affront to the public conscience. In carrying out this balancing exercise it will be necessary for the court in each individual case to take into account a number of factors. These factors have been discussed in the speeches of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann and I am in full agreement with the views which they express. I further consider, with respect, that the approach to be taken by a court and the matters to be considered are well set out in the dissenting judgment of McHugh J in the High Court of Australia in Ridgeway v The Queen (1995) 184 CLR 19, 92 (save that, in my opinion, a prosecution should not be permitted to proceed when the evidence had been obtained by threats)."

Lord Hutton then set out a passage in which McHugh J had emphasised four matters as being particularly relevant for determining the question of abuse: (1) whether the conduct of the police had induced the offence; (2) whether there were reasonable grounds for suspecting the accused or whether the police were acting in the course of a bona fide investigation of offences of a kind similar; (3) whether, prior to the inducement, the accused had the intention of committing the offence or a similar one if the opportunity arose; and (4) whether the offence was induced as the result of persistency or improper inducements.

40. So far as the facts of the particular case of Loosely were concerned, at paragraph 78 Lord Hutton had emphasised that there the police were dealing with a dealer whom they had reasonable cause to suspect was a dealer, and he went on to say:

"The subsequent offer to purchase was in the course of a legitimate undercover purchase and not calculated to cause him to do anything which he would not have done in response to a similar request from any customer."

41. It does appear, and Mr Kingerley accepts, that the Recorder's concluding words in his ruling, which we have cited above, appear to have reflected that language of Lord Hutton there. They were, however, addressed to the case of a dealer.
42. Against that background we come finally to the submissions of counsel and to our conclusions in this case. On behalf of the appellant, Mr Duffy relied upon the essential fact that the Crown had accepted the status of the appellant as that of an addict; not a dealer, nor a dealer's runner. He submitted that in effect the judge had gone wrong, both as a matter of his detailed findings and also as a matter of his application of the principles of Loosely, in losing sight of that fact. It was only because, he submitted, the judge had accepted the evidence of Jackie as being, in all relevant respects, true, that he was able to come to a conclusion in the terms with which he ended and which was not really consistent with the Crown's acceptance of the appellant's status.
43. For his part Mr Kingerley on behalf of the Crown frankly confirmed the Crown's acceptance at all times of the appellant's status. It was on that basis that the issue for the purposes of a Newton hearing was concluded on common ground, as we have shown that it was. It was for that reason that in his cross-examination of the appellant in the voir dire she was not challenged on a basis which, if Jackie's evidence was to have been accepted in full, it would have been natural for the Crown to have challenged the appellant. Mr Kingerley also went on frankly to accept that the Crown never challenged the truthfulness of the appellant's police interview, nor, consistently with that, did the Crown at any time submit to the Recorder (albeit that was ultimately his finding) that the appellant's evidence should be discounted on the basis that it was tailored and coloured to the legal issues involved. Nevertheless he did submit that, when account was taken of three matters in particular, the judge's ruling could nevertheless be supported. The three matters, which he derived from the factors in Loosely, were, first, that the police did have a reasonable suspicion that drug dealing was going on in the locality of the bus station of Cambridge and also had reasonable grounds for suspecting the otherwise unknown person of the appellant on the occasion in question by reason of the matters adverted to by Jackie in her evidence, even though ultimately the Crown accepts that those grounds for suspicion were misplaced. Secondly, Mr Kingerley relies upon that aspect of supervision which was in place in this case - the briefing, the instructions document and the protection of a tape recording - as supporting the bona fides of the police operation, even in the absence of a complete and proper authorisation under the Code of Practice. And thirdly, he relies on the need for state participation in the detection and control of drug dealing by means such as these. Ultimately it remains his submission, although in his helpful and concise argument he has not belaboured the point this morning, that the judge was entitled to regard this as no more than an opportunity for the offence in question rather than a case of inducement or causation.
44. In our judgment, however, the critical fact is the one on which the Crown has had to accept its concession, namely that the appellant's status at all relevant times was that of an addict only. Not only was that the Crown's concession for the purposes of the Newton hearing, but of course it was supported - and that no doubt informed the prosecution's attitude to the question - by the fact that there was, in truth, no evidence that the appellant had ever dealt or, indeed, ever supplied another addict before, a fact also supported by the appellant's antecedents as well as by the search of her home in the subsequent January. It is also supported by the fact of which there is evidence that at the relevant time the appellant was homeless and therefore her presence in the undesirable milieu at the bus station was explicable, whether or not she was there to take a bus or meet someone from a bus. Then there was her interview, accepted as true by the Crown, and indeed by the interviewing officers at the relevant time as our quotes from the interview indicate, which shows that the Recorder was simply mistaken to view the appellant as colouring or tailoring her evidence. Her evidence at the voir dire was consistent with her interview. We remind ourselves of the fact that the appellant's interview was conducted without previous legal advice and without the presence of a legal representative. There is the factor that the voir dire evidence comes over two-and-a-half years later. That was not the Crown's fault, as distinct from the appellant's, but that is the situation. The Recorder appears to have taken a dim view of the appellant, in part because of the "fixed stare" to which he refers in his ruling. As to that Mr Duffy assures us that that was because she had been appropriately instructed to give her answers to the bench rather than to questioning counsel.
45. The Recorder, however, preferred the evidence of Jackie as a witness of truth. But after two-and-a-half years any differences between the two on details of timing or the number of approaches was as likely to be an honest difference, rather than a dishonest difference, certainly in circumstances where there was essential agreement on what had happened. In a rather different category, however, was the fact that Jackie's evidence was entirely affected by her definite, even dogmatic, view that she was entitled to regard the appellant as a dealer and as being predisposed and willing to deal.
46. That, however, was not, we repeat, the Crown's position, and therefore the whole of her evidence can be seen, at any rate in hindsight, as being liable to be coloured by that misapprehension. She, Jackie, entirely honest as she may well have been in her evidence, only saw the matter from her individual point of view. Thus we are prepared to accept that her evidence was entirely honest evidence. We make that assumption. It is nevertheless appropriate to point out that, pressed as she was with the question of whether she had exceeded her instructions, which only authorised her to join an existing conspiracy or a "laid-on" deal and to do so only after she had confirmed the appropriate basis for her participation, her predicament did mean that she was liable to have been tempted to improve her evidence to ensure it showed her as remaining on the right side of her instructions. It is precisely because of such dangers that the Strasbourg jurisprudence and English law, as indicated by the speeches in Loosely, emphasise the importance of proper authorisation.
47. In the circumstances under which Jackie was giving evidence, that is to say her view that the appellant was a drug dealer predisposed to deal with whomever approached her, it is understandable that, while she accepted that she had caused the offence by her activities, she nevertheless, insisted that she was not an agent provocateur and had not entrapped the appellant. Nevertheless when the matter is viewed not through her own more limited viewpoint but from the overall viewpoint of the Crown that the appellant's status was that of an addict only, the strength of the terms in which she did accept that she had caused an offence which would not otherwise have occurred, as indicated by her answers in cross-examination, is a significant feature of her evidence. In any event, in our judgment, Jackie's evidence had to be viewed through the filter of the Crown's acceptance that the appellant was not a dealer or a dealer's runner, but an addict only.
48. We therefore return, in conclusion, to the two grounds of appeal before us, the one of law and other of fact.
49. As for the second ground of appeal - that of fact - we do not in the circumstances need to regard this as turning on an issue of perversity. We think that, unhappily, the Recorder must have simply overlooked the Crown's concession in relation to the Newton argument. We think that he was therefore in error in viewing Jackie's evidence, accept it on its own terms as he may have been inclined to do, as justifying the conclusion to which he came at the end of his ruling. The language he used there about the appellant's willingness to supply "any one of the numerous customers in Cambridge dependent upon heroin and requiring regular supplies of heroin to satisfy their craving" could only really be said of someone who was regarded or could legitimately be regarded as a dealer or as a dealer's runner. There was nothing in the evidence other than Jackie's limited viewpoint (not reflecting that of the Crown) to justify that conclusion; and in truth it could not lie down consistently with the prosecution's case and concession regarding the appellant.
50. In these circumstances we turn finally to the first ground, which we find relatively straightforward. There was not evidence, save for this one single act of supply, to suggest that the appellant would have been prepared to supply any would-be purchaser. It is not a case of mere opportunity. It is not a case of: if not a deal with Jackie, then a deal with any other customer. Moreover, there was lack of proper authorisation. In this connection, the safety precaution of the tape recorder did not support the police evidence over that of the appellant; but, because of its inadequacies, as a form of protection for the appellant was somewhat a broken reed. There was, moreover, a breach of the limited instructions - the six paragraph set of instructions - which had been given to Jackie. Furthermore, there was no predisposition to deal. There was no antecedent record which could be said to lie against the appellant or her evidence. On the contrary, both these factors operated in favour of the appellant. The first approach certainly was made by Jackie and there was persistence to a greater or lesser degree. There is also the important piece of evidence which Jackie accepted (although she placed it later on in the day, at a separate meeting of the two later that afternoon) that the appellant had told her that she was never to approach her again and that she would never help her again - a matter which the Recorder overlooked to mention in his ruling.
51. Thus whether the matter is looked through the lens of the proper safeguards of authorisation, or through the lens of the appellant's absence of predisposition or antecedents, or through the lens of the actual nature of the police activities in relation to this appellant, the conclusion to which we are driven is that this appellant was lured into crime or was entrapped, and that it was a case of causing crime rather than merely providing an opportunity for it, and ultimately that it would be unfair for the State to prosecute her for this offending. In these circumstances, the application to stay for abuse should, we think, have been accepted.
52. We refer moreover to the passages in Loosely which we have already cited above, from the speech of Lord Nicholls at paragraph 4 and from the speech of Lord Hoffmann at paragraph 68, which, although not precisely on all fours with the facts of this case, nevertheless show that their Lordships contemplated that on these facts it would be the proper result to conclude that a State prosecution would be unfair and an abuse of process.
53. We do, however, nevertheless accept, and we would not want to end this judgment losing sight of the fact, that there were nevertheless important headings or topics discussed in Loosely which went in favour of the police, however much on the facts of this case they have been overborne by the other considerations to which we have referred. Those factors were the general bona fides of the police in staking out the bus station - which we accept the police had reasonable grounds for believing was a haunt of drug dealing - and, indeed, the general nature of the suspected offence of dealing in drugs. Despite the lack of proper authorisation, we would, for the purposes of this case, accept the police's bona fides and accept that they had reasonable grounds for staking out the bus station. We would also accept that in general the nature of street drug dealing is such that undercover work of this kind is absolutely necessary for its detection and control. That, however, as Lord Nicholls and Lord Hoffmann were indicating in the passages to which we have just referred, does not mean that if a little fish - if we may refer to her in these terms - like this appellant, a person who is accepted to be an addict only, not a dealer nor a runner, is caught in the net of an undercover operation, it would be fair depending on all the circumstances of the case, to prosecute such a little fish for an offence of supply, which has been created by the police and where there is no good reason to think that the offence would have happened in any event. That in turn, however, does not mean in any way that a dealer who has been caught supplying an undercover police officer whom he would not have supplied if he had known the truth of the matter, but whom he would have regarded nevertheless as just another deal, can run the same defence of abuse of process in his different circumstances. Nevertheless, for the reasons which we have given we would allow this appeal and quash the conviction on count 1.
54. MR DUFFY: My Lords, I am very grateful. My learned friend wishes that I should mention sentence. I think I did earlier. The sentences imposed were concurrent.
55. LORD JUSTICE RIX: Yes.
56. MR DUFFY: So that makes no difference to the sentence imposed on count 2.
57. LORD JUSTICE RIX: It makes no difference.
58. MR DUFFY: No.
59. LORD JUSTICE RIX: Well if you accept that, I suppose we are prepared to accept it. Without really having before us what the judge said on sentence, it would be very difficult for us to come to any other conclusion. I think we have been told that, albeit too late to assist her on the abuse of process argument, the judge was reminded of the proper basis of the prosecution's case, and you have submitted that there was no other basis for such a light sentence.
60. MR DUFFY: Indeed, my Lord.
61. LORD JUSTICE RIX: So the sentence remains on count 2.
62. MR DUFFY: On count 2.
63. LORD JUSTICE RIX: And the conviction is only quashed, of course, on count 1.
64. We are very grateful to both of you for your assistance, particularly as you have gone to some trouble to be here again today and have inconvenienced other people and other courts.